IT    ^K 


I 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


r 


THE  LAW  OF  THE 
PUBLIC   SCHOOL  SYSTEM 

OF    THE 

UNITED   STATES 


THE  LAW  OF  THE 
PUBLIC  SCHOOL  SYSTEM 


OF  THE 


UNITED  STATES 


BY 


HARVEY  COETLANDT  VOORHEES 

OF   THB    BOSTON    BAE 

AUTHOR   OP    "  THE    LAW   OF  ARREST   IN   CIVIL   AND   CRIMINAL 

ACTIONS,"    EDITOR   OF    "  STIMSOn's   LAW   DICTIONARY," 

REVISED  EDITION 


BOSTON 

LITTLE,  BROWN,  AND  COMPANY 

1916 


Copyright,  1916, 
By  Hakvet  Cortlandt  Voorhbes. 

All  rights  reserved 


NortoootJ  prtss 

Set  up  and  electrotyped  by  J.  S.  Gushing  Co.,  Norwood,  Mass.,  U.S.A. 

Presswork  by  S.  J.  Parkhill  &  Co.,  Boston,  Mass.,  U.S.A. 


TO    THE 

HONORABLE  JOHN  WALSH 

WHOSE  EXAMPLE  AND  LEGAL  ATTAINMENTS  HAVE 

BEEN    AN    INSPIRATION    TO    THE    AUTHOR 

AND  MANY  OTHERS  THIS   BOOK  IS 

GRATEFULLY   INSCRIBED 


PREFACE 

Our  national  greatness,  and  the  permanence  of  our 
American  government,  are  to  a  great  extent  founded  in 
our  system  of  public  schools.  In  these  schools  pupils 
learn  patriotism  and  obedience  to  constituted  authority 
to  an  extent  untaught  and  unpracticed  in  many  homes. 
The  acquirement  of  knowledge  is  offered  in  a  system 
which  only  enormous  funds  and  the  painstaking  endeav- 
ors of  selected  instructors  could  make  possible.  As  the 
State  furnishes  so  it  benefits.  The  child  of  today  is  the 
statesman  of  tomorrow.  Competence  is  so  general  that 
no  man  is  considered  unreplaceable. 

But  the  State  does  not  make  scholars.  It  only  offers 
the  means  of  acquiring  scholarship.  The  years  of  nur- 
ture by  our  government  have  created  an  almost  unanimous 
desire  for  a  college  education,  whereas  in  the  earlier  days 
the  main  educational  desire  was  often  expressed  as  an 
ability  to  "read,  write  and  cipher."  Parents  have  seen 
the  folly  of  superficiality  and  are  determined  that  their 
children  shall  be  thorough. 

Improvement  in"  educational  matters  has  been  gradual, 
but  aggressive.  Compulsory  attendance,  guarded  by  at- 
tendance or  truant  officers,  is  a  modern  feature,  but  has 

vii 


PREFACE 

been  so  widely  adopted  that  now  but  two  States  of  our 
Union  are  without  such  law.  There  should  be  none.  It 
is  to  be  regretted,  however,  that  some  States,  although 
adopting  a  compulsory  attendance  law  of  great  possi- 
bilities for  the  uplift  of  the  citizens  and  effective  dimin- 
ishment  of  illiteracy,  have  almost  nullified  the  possible 
beneficial  effect  by  the  adoption  of  provisos  which  render 
the  laws  almost  nugatory.  Gradual  improvement  of  the 
effectiveness  of  these  laws  is  hoped  for. 

The  aggressiveness  with  which  our  school  system  has 
grown  has  naturally  met  with  opposition.  Constitutional 
and  statutory  rights  are  jealously  maintained.  The  re- 
sult has  been  an  enormous  amount  of  litigation  in  school 
matters,  and  it  is  the  purpose  of  this  work  to  make  an 
orderly  presentation  of  the  judicial  precedents  for  the  con- 
venient reference  of  those  interested.  A  few  references 
have  been  made  to  decisions  of  school  tribunals  where 
either  the  facts  are  peculiar,  or  no  decision  to  the  same 
effect  has  been  found  in  the  reported  cases.  No  apology 
is  offered  for  the  presentation  of  such  decisions.  The 
judicial  pronouncement  is  that  such  decisions  have  the 
conclusive  quality  of  "a  judgment  pronounced  in  a  legally 
created  court  of  limited  jurisdiction."  ^  The  inaccessi- 
bility alone  of  such  decisions  would  seem  to  make  this 
presentation  desirable. 

In  the  various  States  are  several  hundred  thousand 
school  officers  2  who,  in  their  official  duties,  are  called 
upon  to  decide  the  legality  of  expulsion  or  suspension  of 
pupils,  the  employing  and  dismissal  of  teachers,  and  to 

1  Thompson  v.  Board  of  Education,  57  N.  J.  L.  628 ;  31  All.  168. 
^  Alabama  alone  has   about   eleven  thousand   district   school 
trustees. 

viii 


PREFACE 

make  many  contracts  relating  to  school  affairs  and  prop- 
erty. Slight  inadvertence,  indiscretion,  or  lack  of  knowl- 
edge may  make  them  personally  liable.  They  should 
know  their  rights  and  liabilities.  To  them,  and  to  the 
members  of  the  legal  profession  who  are  to  care  for  such 
litigation  it  is  hoped  that  the  efforts  of  the  Author  will 
be  found  helpful. 

HAKVEY  CORTLANDT  VOORHEES. 
Boston,  July  1,  1916. 


IX 


CONTENTS 


Table  of  Cases 


CHAPTER  I 
General  Principles,  §§  1-14     . 

§  1.   Duty  of  Educating 

§  2.   Power  to  Establish  Public  Schools 

§  3.   Constitutional  Provisions 

§4.   What  is  a  School? 

§  5.   What  is  a  Public  School?      . 

§  6.   What  is  Education  ? 

§  7.   Father's  Duty  to  Educate 

§  8.   Mother's  Duty  to  Educate     . 

§  9.   Pecuniary  Ability  of  Parent . 
§  10.   Child  was  without  Remedy   . 
§  11.   Parent  may  Direct  Studies    . 
§  12.  Non-Compulsory  System 
§  13.    Compulsory  Education  . 
§  14,   Excuses  for  Non-Attendance 

CHAPTER  II 


Of  School  Districts,  §§  15-27 

§  15.   Status  of  School  Districts      .... 

§  16.   Districts  De  Facto 

§  17.   Formation  and  Organization  of  Districts 

§  18.   Petitions   for   Establishment    or    Alteration 

Districts 

§  19.   Boundaries  of  Districts 
§  20.    Alteration  and  Abolition  of  Districts 
§  21.   Powers  and  Management  of  Districts 
§  22.   District  Meetings  .... 


of 


PAGE 

xvii 


1-21 

1 

2 

2 

6 

7 

9 

10 

11 

13 

13 

14 

15 

15 

19 


22-58 
22 
25 
27 

28 
29 
31 
36 
39 


XI 


CONTENTS 


§  23.  Warning  or  Notice  of  Meetings    . 

§  24.  Electors  and  Votes  of  District  Meetings 

§  25.  Records  and  Minutes     .... 

§  26.  District  Claims  and  Actions 

§  27.  District  Torts 


PAGE 

43 
48 
50 
51 
55 


CHAPTER   III 
Of  School  Property,  §§  28-40 

§  28.  Power  to  Provide  Land  and  Buildings 

§  29.  Acquiring  Site        .... 

§  30.  Erecting  Schoolhouses  . 

§  31.  Mechanics'  Liens   .... 

§  32.  Contractors'  Bonds 

§  33.  Alteration,  Repairs  and  Maintenance 

§  34.  Exclusiveness  of  Use 

§  35.  Personal  Property  .... 

§  36.  Apparatus  and  Appendages  . 

§  37.  Isolated  Territory  .... 

§  38.  Offenses  against  School  Property 

§  39.  Saloons  and  Intoxicants 

§  40.  Conveyances  of  School  Property    . 


59-85 
59 
62 
64 
67 
68 
71 
73 
77 
78 
80 
81 
81 
83 


CHAPTER  IV 
Op  School  Officers,  §§  41-61  .... 

§  41.  State  Superintendent     .... 

§  42.  County  Superintendent .... 

§  43.  School  Directors 

§  44.  Must  Act  as  Unit 

§  45.  Discretion  and  Good  Faith    . 

§  46.  Qualifying  of  Officers     .... 

§  47.  Vacating  and  Removal  .... 

§  48.  Officers  De  Facto,  De  Jure  and  Intruders 

§  49.  Usurpation  of  Duties     .... 

§  50.  Meetings  of  School  Directors 

§  51.  Notice  of  Meetings         .... 

§  52.  Records  

§  53.  Voting 

§  54.  Making  Contracts 

§  55.  Bids  and  Bidders 

xii 


5-135 
86 
90 
94 
100 
101 
103 
104 
107 
113 
113 
114 
115 
116 
117 
123 


CONTENTS 


§56. 
§57. 
§58. 
§59. 
§60. 
§61. 


Implied  Contracts 
Modification  of  Contracts 
Ratification  of  Contracts 
Acts  Ultra  Vires    .        .        .        . 
Duties  and  Liability  of  Treasurer 
Employing  Counsel 


CHAPTER  V 


Of  School  Teachers,  §§  62-71 

§  62.  Duties  of  Teachers 

§  63.  Qualifications.  —  Certificates 

§  64.  Contract  of  Employment 

§  65.  Compensation         .... 

§  66.  Powers 

§  67.  Religions  Garb       .... 

§  68.  Bible  Reading  and  Religious  Worship 

§  69.  Discbarge,  Removal  and  Suspension 

§  70.  Right  to  Chastise  Pupils 

§  71,  Right  to  Expel  Pupils   . 


PAGE 

125 
127 
127 
131 
132 
135 


136-176 
136 
138 
143 
151 
153 
154 
155 
159 
166 
174 


CHAPTER  VI 

Of  Pupils,  §§  72-83 .    177-212 

§  72.  Rights  and  Duties 177 

§  73.   Admission 179 

§  74.   School  Age 181 

§75.   Non-Residents 182 

§  76.   Tuition  Fees 183 

§  77.   Control  of  Pupils 183 

§  78.  Exclusion,  Suspension  and  Expulsion  .        .        .  185 

§79.  Health  Regulations.  —  Vaccination       .        .        .  195 

§  80.   Reinstatement 199 

§  81.   Diplomas 200 

§  82.   Separate  Schools 201 

§  83.   Transportation 209 


CHAPTER  VII 

Rules  and  Regulations,  §§  84-97   . 
§  84.   Power  of  Adoption 
§  85.  Manner  of  Establishing 

xiii 


213-228 
213 
214 


CONTENTS 


§86. 
§87. 
§88. 
§  89. 
§90. 
§91. 
§92. 
§93. 
§  9i. 
§95. 
§96. 
§97. 


PAGE 

Reasonableness  and  Validity        ....  215 

Carrying  Fuel 216 

Rhetorical  Exercises  and  Dialogues    .        .        .  217 

Compositions  and  Debates 218 

Tardiness 220 

Detention 220 

Secret  Societies 221 

Football  Playing 223 

Pupils  to  Go  Directly  Home  after  School    .        .  224 

Conduct  outside  of  School 22.5 

Truancy.  —  Attendance  Officers  ....  226 

Incidental  Fees 227 


CHAPTER  Vm 

Of  Books  and  Studies,  §§  98-106 

§  98.  Prescribing  Studies 

§  99.  Adoption  of  Books 

§  100.  Uniformity  of  Books    . 

§  101.  Text-Book  Commissions 

§  102.  Bids  for  Supplying  Books 

§  103.  Free  Books  . 

§  104.  Publishers'  Contracts  . 

§  105.  Publishers'  Bonds 

§  106.  Studies  Prescribed  or  Prohibited  by  Parent 


229-243 
229 
230 
232 
235 
236 
237 
238 
240 
242 


CHAPTER  IX 


Of  School  Funds,  §§  107-116    . 
§  107.   Sources  of  Funds 
§  108.   Borrowing  Money 
§  109.   Promissory  Notes 
§  110.    Custodian  and  Depositary 
Certificates  of  Indebtedness 
Apportionment  of  Funds 
Misapplication  of  Funds 
Loans  of  Funds    . 
Lack  of  Funds 
School  Bonds 


§111. 
§112. 
§113. 
§114. 
§115. 
§116. 


—  Warrants 


244-258 
244 
245 
246 
247 
248 
251 
253 
255 
256 
257 


XIV 


CONTENTS 


CHAPTER  X 

PAOE 

Of  School  Taxes,  §§  117-130 259-279 

§  117.   Power  to  Levy 259 

§  118.   Meeting  to  Authorize  Levy          ....  260 

§  119.   Purposes  of  Levy 262 

§  120.   Amount  of  Levy 264 

§  121.  Manner  of  Levying 264 

§  122.    Apportionment  of  Taxes 265 

§  123.   Wliat  Property  is  Taxable  .        .        .        •        .  266 

§  124.   Certificate  of  Levy 268 

§  125.   Assessing  of  Taxes 269 

§  126.   Constitutionality  of  Levy 272 

§  127.   Illegal  Levy 273 

§  128.   Collection  of  Taxes 275 

§  129.   Exemption  from  Taxation 277 

§  130.   Delinquent  Taxes.  —  Execution  and  Sale   .        .  278 


CHAPTER  XI 


Synopses  of  Principal  Statutes, 
General  Statement 
Alabama 
Arizona 


131-179 


§13L 
§132. 
§  133. 
§134. 
§135. 
§136. 
§137. 
§138. 
§139. 
§140. 
§141. 
§142. 
§143. 
§144. 
§145. 
§146. 
§147. 
§148. 
§149. 
§150. 


Arkansas 

California 

Colorado 

Connecticut 

Delaware 

Florida 

Georgia 

Idaho    . 

Illinois 

Indiana 

Iowa 

Kansas . 

Kentucky 

Louisiana 

Maine  . 

Maryland 

Massachusetts 


280-385 
280 
281 
283 
285 
287 
291 
293 
296 
298 
300 
301 
303 
305 
307 
310 
313 
315 
316 
319 
321 


XV 


CONTENTS 

PAGE 

§  151.  Michigan 324 

§  152.   Minnesota 327 

§  153.   Mississippi 330 

§  154.   Missouri 331 

§  155.   Montana 333 

§  156.  Nebraska 336 

§  157.   Nevada 338 

§  158.   New  Hampshire 340 

§  159.   New  Jersey 342 

§  160.   New  Mexico 344 

§  161.    New  York 346 

§  162.   North  Carolina 349 

§  163.   North  Dakota 351 

§  164.   Ohio 353 

§  165.   Oklahoma 355 

§  166.    Oregon 356 

§  167.   Pennsylvania 359 

§  168.   Rhode  Island 361 

§  169.   South  Carolina 363 

§  170.   South  Dakota 365 

§  171.   Tennessee 367 

§  172.   Texas 369 

§  173.   Utah 371 

§  174.   Vermont .  373 

§  175.   Virginia 376 

§  176.   Washington 378 

§  177.   West  Virginia 381 

§  178.   Wisconsin 382 

§  179.   Wyoming 384 

Ikdkx 387 


XVI 


TABLE  OF  CASES 

[References  are  to  pages.] 

A 

Abbott  V.  Chase,  75  Me.  83 83 

Abeel  v.  Clark,  84  Cal.  226 195 

Ackerman  v.  Vail,  4  Denio  (N.  Y.)  297 264 

Adams  v.  Crooks,  7  Gray  (Mass.)  411 31 

V.  Hyde,  27  Vt.  221 264,  269 

V.  Sleeper,  64  Vt.  544 46 

V.  State,  82  lU.  132 95,  96,  253 

V.  Tator,  42  Hun  (N.  Y.)  384 109 

Addison  v.  Bowie,  2  Bland  (Md.)  606 11 

Aetna  Indemnity  Co.  v.  Comer,  136  Ga.  24 67 

A.  H.  Andrews  Co.  v.  Delight,  &c.,  95  Ark.  26      .     .       22,  95,  249 

Aiken  v.  School  District,  &c.,  27  Kan.  129 148 

Albertville  v.  Rains,  107  Ala.  691 244 

Alden  v.  Rounsville,  7  Mete.  (Mass.)  218 30 

Alderman  v.  School  Directors,  91  111.  179     ..     .       26,  38,  54,  81 

Allen  V.  Bertram,  70  Iowa  434 29 

V.  Gleason,  4  Day  (Conn.)  376 278 

V.  School  District,  &c.,  15  Pick.  (Mass.)  35 38 

V.  Strickland,  100  N.  C.  225 43 

Alvord  V.  Chester,  180  Mass.  20 114,  177,  196 

American  Heating,  &c.,  v.  Board,  &c.,  81  N.  J.  L,  423  .     .     .  100 

American,  &c.,  v.  Board,  &c.,  131  Wis.  220 116 

Anderson  v.  Board,  &c.,  122  Mo.  61 124 

Andrews  v.  Curtis,  2  Tex.  Civ.  App.  678 .  126 

V.  School  District,  &c.,  37  Minn.  96 128 

Anniston  City  Land  Co.  v.  State,  185  Ala.  482 277 

Armstrong  v.  School  Directors,  &c.,  160  111.  App.  430    .     .     .  101 

V.  School  District,  19  Mo.  App.  462 162 

V.  School  District,  &c.,  28  Mo.  App.  169 122 

V.  Union,  &c.,  28  Kan.  345 160 

Ashuelot  National  Bank  v.  School  District,  56  Fed.  197     .     .  257 

Associated  Schools,  &c.,  v.  School  District,  &c.,  122  Minn.  254  229 

xvii 


TABLE  OF  CASES 

[References  are  to  pages.] 

Attorney  General  v.  Bickford,  77  N.  H.  433 90 

V.  Burnham,  61  N.  H.  594 94 

Auditor  General  v.  Mc Arthur,  87  Mich.  457 272 

Austin  V.  Board,  &c.,  68  Misc.  Rep.  (N.  Y.)  538 64 

Auten  V.  Board,  &c.,  83  Ark.  431 197 

Avery  v.  U.  S.,  104  Fed.  711 83 

Axt  V.  Jackson,  &c.,  90  Ind.  101 97,  249,  250 

B 

Bacon  v.  School  District,  97  Mass.  421 275 

Baker  v.  Bryan,  64  Iowa  561 69 

V.  Chambles,  4  Greene  (la.)  428 37 

V.  School  District,  &c.,  46  Vt.  189        65 

Ballentine  v.  Pulaski,  83  Tenn.  633 260 

Baltimore  v.  Keyser,  72  Md.  106 124 

Baltimore,  &c.,  v.  State,  &c.,  26  Md.  505 231,  233 

Bancroft  v.  Thayer,  5  Sawy.  (U.  S.  C.  C.)  502 230 

Bank  v.  Brainerd,  &c.,  49  Minn.  106 37,  57 

Bank  of  Gallatin  v.  Baber,  74  Tenn,  273 53 

Bank,  &c.,  v.  Guttschlick,  14  Pet.  (U.  S.)  19 119 

Barnard  v.  Matherly,  84  Mo.  App.  140 183 

V.  Shelburne,  216  Mass.  19 192 

Barnes,  Appeal  of,  6  R.  I.  591 76 

Barnes  v.  Barnes,  6  Vt.  388 27 

V.  Ovitt,  47  Vt.  316 36 

Barngrover  v.  Maack,  46  Mo.  App.  407 140 

Barnhart  v.  Bodenhammer,  31  Mo.  319 139 

Barr  v.  Deniston,  19  N.  H.  170 142 

Barre  v.  School  District,  &c.,  69  Vt.  374 35 

Barrett  M'f'g  Co.  v.  Board,  &c.,  133  La.  1022 67 

Barry  v.  McCoUom,  81  Conn.  293 93 

Bartlett  v.  Kinsley,  15  Conn.  327 40,  41,  47,  276 

Bassett  v.  Fish,  75  N.  Y.  303 22,  57,  58 

V.  Porter,  4  Cush.  (Mass.)  487 27 

Bates  V.  Bates,  74  Ga.  105 153 

V.  Weymouth,  9  Gray  (Mass.)  433 267 

Baxter  v.  Davis,  58  Oreg.  109 95 

Bay  State  Live  Stock  Co.  v.  Bing,  51  Neb.  570 27 

Bays  V.  State,  6  Neb.  167 165 

Bean  v.  Prudential,  &c.,  38  Vt.  177 62 

Beard's  Estate,  1  Pa.  Co.  Ct.  283  . 11 

xviii 


TABLE  OF  CASES 

[References  are  to  pages.] 

Beardsley  v.  Brown,  71  111.  App.  199 68 

Beaty  v.  Randall,  79  Mo.  App.  226 216 

Beck  V.  Board,  &c.,  76  Ohio  St.  587 116 

Bedell  v.  Barnes,  17  Hun  (N.  Y.)  353 279 

Bedford  v.  Bedford,  136  111.  354 11 

Bellmeyer  v.  Marshallto^vn,  44  Iowa  564      ....     77,  122,  259 

Bellows  V.  District,  &c.,  70  Iowa  320 60,  128 

Bender  v.  Streabich,  17  Pa.  Co.  Ct.  609 75 

V.  Streabich,  182  Pa.  St.  251 39 

Benjamin  v.  Hull,  17  Wend.  (N.  Y.)  437      ....      37,  62,  245 

Bennett  v.  Burch,  1  Denio  (N.  Y.)  141 252 

Berea  College  t-.  Com.,  211  U.  S.  45,  53  L.  ed.  81      ....    205 

Berger  M'f'g.  Co.  v.  Crites,  178  Mo.  App.  218 66 

Bertonneau  v.  Directors,  3  Woods  (U.  S.  C.  C.)  177      ...    203 

Besondy,  In  re,  32  Minn.  385 11,  13 

Bigelow  V.  Randolph,  14  Gray  (Mass.)  541 55,  56 

Biggs  V.  Mt.  Vernon,  45  Ind.  App.  572 149 

Billard  v.  Board,  &c.,  69  Kan.  53 156 

Binde  v.  Klinge,  30  Mo.  App.  285 199 

Bishop  V.  Rowley,  165  Mass.  460 191,  194 

Bissell  V.  Davidson,  65  Conn.  183 195,  196 

Black  V.  Early,  208  Mo.  281 26 

V.  Graham,  238  Pa.  381 181 

Blaisdell  v.  School  District,  &c.,  72  Vt.  63 249 

Blake  v.  Mayor,  &c.,  19  Q.  B.  D.  79 9 

V.  Sturtevant,  12  N.  H.  567 37,  245 

Blanchard  v.  Blackstone,  102  Mass.  343 119 

V.  Burns,  110  Ark.  515 69,  70 

V.  School  District,  29  Vt.  433 139,  140 

Blandon  v.  Moses,  29  Hun  (N.  Y.)  606 141 

Bloomington,  &c.,  v.  National  School,  &c.,  107  Ind.  43  .     .     96,  97 

Bloomsburg,  &c..  In  re,  4  Pa.  Co.  Ct.  411 103 

Blue  V.  Beach,  155  Ind.  121 197 

Bluff  Creek  v.  Hardinbrook,  et  al,  40  Iowa  130    ..     .      133,  134 

Board,  &c.,  v.  Andrews,  51  Ohio  St.  199 79 

V.  Atwood,  74  N.  J.  L.  638 209 

V.  Billings,  15  Fla.  686 91 

V.  Board,  &c.,  50  Ohio  St.  439 183 

V.  Board,  &c.,  30  W.  Va.  424 35,  37 

V.  Bolton,  85  111.  App.  92 182 

V.  Burton,  30  Ohio  Cir.  Ct.  411 150 

V.  Cain,  28  W.  Va.  758 276 

xix 


TABLE  OF  CASES  * 

[References  are  to  pages.] 

Board,  &c.,  v.  Carolan,  182  111.  119 128 

V.  Detroit,  30  Mich.  505 24 

V.  Detroit,  80  Mich.  548 238 

V.  Fudge,  4  Ga.  App.  637 245,  246 

V.  Grant,  107  Mich.  151 70 

V.  Greenbaum,  39  111.  609 99,  125 

V.  Harrodsburg,  &c.,  9  Ky.  L.  Rep.  605 244 

V.  Helston,  32  111.  App.  300 199 

V.  Jewell,  44  Minn.  427 133,  134 

V.  McComb,  92  U.  S.  531 66 

V.  Mapes,  14  N.  Y.  St.  R.  593 62 

V.  Minor,  23  Ohio  St.  211 229 

V.  Moore,  17  Minn.  412 257 

V.  Purse,  101  Ga.  422 12,  188 

V.  School  District,  56  Ark.  354 277 

V.  State,  26  Okla.  366     ." 25 

V.  Tafoya,  6  N.  M.  292 244 

V.  Trustees,  &c.,  18  Ky.  L.  Rep.  103 244 

V.  Volk,  72  Ohio  St.  469 56 

V.  Waugh,  105  Miss.  623 223 

V.  Welch,  51  Kan.  806 10,  257 

Bogaard  v.  Plain  View,  93  Iowa  269 61 

Bolivar  County  v.  Coleman,  71  Miss.  832 84 

Bolton  V.  Board,  &c.,  1  111.  App.  193 258 

Bopp  V.  Clark,  165  Iowa  697 144 

Bourbon,  &c.,  v.  Perkins,  21  Kan.  531 79 

Bourland  v.  Snyder,  224  111.  478 28 

Bowen  v.  King,  34  Vt.  156 27,  55 

Boyd  V.  Mill  Creek,  &c.,  114  Ind.  210 249 

V.  State,  88  Ala.  169 167,  170 

Bozeman,  In  re,  42  Kan.  456 79 

Bradfield  v.  Avery,  16  Idaho,  769 93 

Bradford  v.  Board,  &c.,  18  Cal.  App.  19 222,  223 

Braley  v.  Dickinson,  48  Vt.  599 41 

Bramwell  v.  Guheen,  3  Idaho  347 265 

Branaman  v.  Hinkle,  137  Ind.  496 94 

Brasch  v.  Western,  &c.,  80  Ark^  425 279 

Brewer  v.  Palmer,  13  Mich.  104 35 

Brewster  v.  Syracuse,  19  N.  Y.  116 266 

Briggs  V.  Johnson  Co.,  4  Dill.  (U.  S.  C.  C.)  148         ....    233 

Briggs  V.  School  District,  &c.,  21  Wis.  348 34 

Brock  V.  Bruce,  59  Vt.  313 270 

XX 


TABLE  OF  CASES 

[References  are  to  pages.| 

Broussard  v.  Verret,  43  La.  An.  929 115,  127 

Brown  v.  Chesterville,  63  Me.  241 142 

V.  Lunt,  37  Me.  423 108 

V.  Owen,  75  Miss.  319 143 

V.  School  District,  &c.,  1  Kan.  App.  530 148 

V.  School  District,  &c.,  64  N.  H.  303 128 

Bryan  v.  Fractional,  &c.,  Ill  Mich.  67 142 

Bryant  v.  Goodwin,  9  Ohio  471 270 

V.  Whisenant,  167  Ala.  325 227 

Buchanan  v.  School  District,  25  Mo.  App.  85 37 

Buckley's  Adm'r  v.  Howard,  35  Tex.  565 U 

Bull  V.  Read,  13  Grat.  (Va.)  78       259,  273 

Bundy  v.  State,  95  Ark.  460 98 

Burdick  v.  Babcock,  31  Iowa  562 220,  223 

Buren  v.  Albertson,  54  N.  J.  L.  72 93 

Burgess  y.  Pue,  2  Gill  (Md.)  254 Ill 

V.  School  District,  100  Mass.  132 52 

Burkhead  v.  Independent,  &c.,  107  Iowa  29     ....      144,  149 

Burnett  v.  School  Inspectors,  97  Mich.  103 33 

Burnham  v.  Rogers,  167  Mo.  17 54 

Burpee  v.  Burton,  45  Wis.  150 176,  186 

Burton  v.  Fulton,  49  Pa.  St.  151 164 

V.  Maynard,  Merrill  &  Co.,  31  Ky.  L.  Rep.  1342  ....    240 

Bush  V.  Shipman,  5  111.  186 22,  251 

Butcher  v.  Charles,  95  Tenn.  532 145,  160 

Butler,  &c.,  In  re,  158  Pa.  St.  159 113 

Butler  V.  Haines,  79  Ind.  575 140,  141 

V.  Joint  School  District,  &c.,  155  Wis.  626 114 

V.  Shirley,  &c.,  15  Pa.  Co.  Ct.  291 231 

V.  State,  89  Ga.  821 82 

V.  Windsor,  155  Wis.  626 101,  144 

Butterfield  v.  School  District,  &c.,  61  Me.  583      ....     33,  44 

Byrne  v.  School  District,  &c.,  139  Iowa  618 150 

Byrne  &  Read  v.  Board,  &c.,  140  Ky.  531        100 

C 

Cairo,  &c.,  v.  Mathews,  152  111.  153 268 

Caldwell  v.  Bauer,  179  Ind.  146 85 

V.  School  District,  &c.,  55  Fed.  372 148 

CaldweU  County  v.  Harbert,  68  Tex.  321 153 

Call  V.  Chadbourne,  46  Me.  206 26 

xxi 


TABLE  OF  CASES 

[References  are  to  pages.] 

Campana  v.  Calderhead,  17  Mont.  548 231 

Campbell  v.  Indianapolis,  155  Ind.  186 37 

Capital  Bank  v.  School  District,  &c.,  1  N.  D.  479     .     .     .     .  132 

V.  School  District,  &c.,  63  Fed.  938 132 

Carey  v.  Thompson,  66  Vt.  665 210 

Carpenter  v.  Independent,  &c.,  95  Iowa  300 62 

Carson  v.  State,  27  Ind.  465 , .  37 

Cartersville  v.  Baker,  73  Ga.  686 66 

Carver  v.  School  District,  &c.,  113  Mich.  524 163 

Cary  v.  State,  76  Ala.  78 108 

Cary  Library  v.  Bhss,  151  Mass.  364 100 

Cascade,  &c.,  v.  Lewis,  &c.,  43  Pa.  St.  318 120,  183 

Case  V.  State,  69  Ind.  46 109 

Cashen  v.  School  District,  50  Vt.  30 151 

Castleton  v.  Langdon,  19  Vt.  210 84 

Castro  V.  Board,  &c.,  38  W.  Va.  707 148 

Chadwick  v.  Crapsey,  35  N.  Y.  196 264 

Chamberlain  v.  Board,  &c.,  58  N.  J.  L.  347 257 

V.  Board,  &c.,  57  N.  J.  L.  605 48,  80 

Chandler  v.  Board,  &c.,  104  Mich,  292 123 

Chapin  v.  School  District,  30  N.  H.  25 40 

Chaplin  v.  HiU,  24  Vt.  528 74,  76,  81 

Chase  v.  Hathaway,  14  Mass.  222 105 

V.  Merrimac  Bank,  19  Pick.  (Mass.)  564 54 

V.  Stephenson,  71  111.  383 204 

Charlestown,  &c.,  v.  Hay,  74  Ind.  127 151,  152 

Chegary  v.  New  York  City,  13  N.  Y.  220 277 

Chicago  &  A.  R.  Co.  v.  People,  163  111.  616 262 

Chicago,  &c.,  Ry.  Co.  v.  People,  184  111.  240 268 

Chicago,  &c.,  v.  Langlade,  &c.,  56  Wis.  614 109 

Chicago,  &c.,  v.  People,  155  111.  276 268 

Childrey  v.  Rady,  77  Va.  518 377 

Chiles  V.  Todd,  43  Ky.  126 49 

Chrisman  v.  Brookhaven,  70  Miss.  477 202,  204 

Christ  V.  Brownsville  Tp.,  10  Ind.  461 245 

Church  V.  Bullock,  109  S.  W.  (Tex.)  115 158 

Churchill  v.  Board,  &c.,  28  Ky.  L.  Rep.  162 276 

City  of  Hastings  v.  Thorne,  8  Neb.  160 244 

City  School,  &c.,  v.  Hickman,  47  Ind.  App.  500 146 

Clapton  V.  Taylor,  49  Mo.  App.  117        124 

Clark  V.  Board,  &c.,  24  Iowa  266 205,  209 

V.  Great  Barrington,  11  Pick.  (Mass.)  260 153 

xxii 


TABLE  OF  CASES 

[References  are  to  pages.] 

Clark  V.  Haworth,  122  Ind.  462 233,  234,  237 

V.  NicholasviUe,  27  Ky.  L.  Rep.  974 56 

V.  School  Directors,  78  111.  474 126,  248 

V.  School  District,  29  Vt.  217 149 

Clark  School  Township  v.  Home  Insurance  Co.,  20  Ind.  App.  543      38 

Clarke  v.  Milwaukee  County,  53  Wis.  65 92 

V.  School  District,  84  Ark.  516 51 

V.  School  District,  &c.,  3  R.  I.  199 240 

Clavering  v.  Ellison,  7  H.  L.  Cas.  713 12 

Claybrook  v.  Owensboro,  16  Fed.  297 202 

Cleveland  v.  Amy,  88  Mich.  374 148 

Cleveland  C.  C.  &  St.  L.  Ry.  Co.  v.  People,  208  111.  9    ...     264 

Cochran  v.  Garrabrant,  32  N.  J.  L.  444 269 

Coffin  V.  Portland,  16  Oreg.  77 84 

Cole  V.  Black  River  Falls,  57  Wis.  110 109 

Collins,  Ex  parte,  49  Ala.  69 52 

Collins  V.  Henderson,  11  Bush  (Ky.)  74 7 

V.  School  District,  52  Me.  522 26 

Colt  V.  Eves,  12  Conn.  253 46 

V.  Roberts,  28  Conn.  330 59 

Colton  V.  Beardslev,  38  Barb.  (N.  Y.)  29 263 

Com.  V.  Bush,  131  Ky.  384 Ill 

V.  Collins,  75  Ky.  386 239 

V.  Comly,  3  Pa.  St.  372 133,  134 

V.  Dedham,  16  Mass.  141 2 

V.  Directors,  &c.,  164  Pa.  St.  607 180 

V.  Everson,  140  Mass.  434 82 

V.  Gardner,  23  Pa.  St.  417 27 

V.  Ginn,  111  Ky.  110 233,  241 

V.  Hammer,  9  Pa.  Dist.  251 17,  21 

V.  Hartman,  17  Pa.  St.  118 233,  259 

V.  Herr,  39  Pa.  Super.  Ct.  454 96 

V.  Interstate,  &c.,  Ry.,  187  Mass.  436       211,  219 

V.  Jenks,  154  Pa.  St.  368 108 

V.  Jones,  142  Mass.  573 28 

V.  Louisville,  &c.,  17  Ky.  L.  Rep.  991       837 

V.  Morrisey,  86  Pa.  St.  416 216 

V.  Randall,  4  Gray  (Mass.)  36 107 

V.  Risser,  3  Pa.  Super.  Ct.  196 117 

V.  Roberts,  159  Mass.  372 10 

V.  Rowe,  218  Pa.  St.  168 191 

V.  School  Board,  &c.,  109  Va.  346 76 

xxiii 


TABLE   OF  CASES 

[References  are  to  pages.] 

Com.  V.  Seed,  5  Pa.  L.  Jour.  78 170,  173 

V.  Smith,  24  Pa.  Co.  Ct.  129 20 

V.  Williamson,  30  Leg.  Int.  (Pa.)  406 103 

Commissioners  v.  Lineberger,  3  Mont.  231 134 

Compulsory  Attendance  Law,  In  re,  25  Pa.  Co.  Ct.  503     .     .       17 

Cone  V.  Forest,  126  Mass.  97 276 

Cones  V.  Benton,  &c.,  137  Ind.  404 57 

Conley  v.  School  Directors,  32  Pa.  St.  194 31,  96 

Connoquenessing,  &c.,  In  re,  9  Pa.  Co.  Ct.  425 61 

Connor  v.  Board,  &c.,  10  Minn.  439 22,  32 

Converse  v.  Porter,  45  N.  H.  385 62 

Cook  V.  Board,  &c.,  266  111.  164 10 

V.  Neely,  143  Mo.  App.  632 166,  167 

V.  North  McGregor,  40  Iowa  444 123 

V.  State,  90  Tenn.  407 10 

V.  Wliite,  &c.,  33  Ky.  L.  Rep.  926 100 

Cooke  V.  School  District,  &c.,  12  Colo.  453 34,  252 

Cooper,  Ex  parte,  3  Tex.  App.  489 244 

Cooper  V.  State,  8  Baxt.  (Tenn.)  324 167 

Corn  V.  Board,  &c.,  39  111.  App.  446 151,  152 

Cory  V.  Carter,  48  Ind.  327 3,  4,  202,  209 

Cost  V.  Shinault,  113  Ark.  19 77 

Cottrell,  Appeal  of,  10  R.  I.  615 87 

Coulter  V.  School  Inspectors,  59  Mich.  391 44 

Cousens  v.  School  District,  &c.,  67  Me.  280 60 

Crabb  v.  School  District,  &c.,  93  Mo.  App.  254 139 

Crampton  v.  Zabriskie,  101  U.  S.  601,  25  L.  ed.  1070     ...    257 

Crandall  v.  Trustees,  &c.,  51  N.  J.  L.  138 49 

Crawford  v.  District,  &c.,  68  Oreg.  388 95,  96,  203 

CrawsfordsviUe  v.  Hays,  42  Ind.  200 159,  160 

Creager  v.  School  District,  &c.,  62  Mich.  101 79 

V.  Wright,  &c.,  67  Mich.  262 80 

Crosby  v.  School  District,  &c.,  35  Vt.  623 137 

Cross  V.  Board,  &c.,  33  Ky.  L.  Rep.  472 102,  218 

V.  School  Directors,  24  111.  App.  191 148 

V.  Walton,  &c.,  129  Ky.  35 199 

Crowell,  &c.,  v.  First  Nat'l  Bk.  163  S.  W.  (Tex.)  339     ..     .      54 

Currie  v.  School  District,  &c.,  35  Minn.  163 65 

Curryer  v.  Merrill,  25  Minn.  1 230,  231 

Curttright  v.  Independent,  &c..  Ill  Iowa  20 165 

Cushing  V.  Friendship,  89  Me.  525 226 

V.  Newburyport,  10  Mete.  (Mass.)  508 259,  260 

xxiv 


TABLE  OF  CASES 

[References  are  to  pages.] 
D 

Dallas  V.  Fosdick,  40  How.  Pr.  (N.  Y.)  240 6 

Dameron  v.  Bayless,  14  Ariz.  180 206 

Danenhoffer^'v.  State,  69  Ind.  295 169 

Darter  v.  Board,  &c.,  161  111.  App.  284 163 

Dartmouth  Sa\dngs  Bank  v.  School  District,  &c.,  6  Dak.  332      33 

Davies  v.  Holland,  43  Ark.  425 46 

Davis  V.  Barnstable,  154  Mass.  224 245 

V.  Board,  &c.,  38  W.  Va.  382 132 

V.  Boget,  50  Iowa  11 76 

V.  Boston,  133  Mass.  103 193 

V.  Chilmark,  199  Mass.  112 80 

V.  Harrison,  140  Ky.  520 142,  145 

V.  Rapp,  43  N.  J.  L.  594 40 

V.  School  District,  &c.,  24  Me.  349 73,  128,  129 

V.  Steuben,  &c.,  19  Ind.  App.  694 249 

f.  United  States,  23  Ct.  CI.  329 117 

Dawes  v.  Howard,  4  Mass.  97 11 

Dawson  v.  Dawson,  12  Iowa  512 14 

Dees  V.  Board,  &c.,  146  Mich.  64 150 

Deming  v.  State,  23  Ind.  416 256 

Derry,  &c.,  In  re,  2  Pear.  (Pa.)  24 61,  105 

Deskins  v.  Gose,  85  Mo.  484 173,  184 

Des  Moines,  &c.,  v.  Plane,  163  Iowa  18 67 

Dewey  v.  Union,  &c.,  43  Mich.  480 147,  151 

De  Wolf  V.  Watterson,  35  Hun  (N.  Y.)  Ill 112 

Dickinson  v.  Linn,  36  Pa.  St.  431 255 

District,  &c.,  v.  Meyers,  83  Iowa  688 78 

V.  Morton,  37  Iowa  550 133 

Dodd  V.  State,  94  Ark.  297 166 

Dolan  V.  School  District,  80  Wis.  155 122 

Donahoe  v.  Richards,  38  Me.  379 103,  158,  221,  230 

Donovan  v.  McAlpin,  85  N.  Y.  185 57 

Doohttle  V.  Doolittle,  31  Barb.  (N.Y.)  312 275 

Dorner  v.  School  District,  137  Wis.  147 254 

Dorton  v.  Hearn,  67  Mo.  301 75 

Douglas  V.  Campbell,  89  Ark.  254       192,  194 

V.  Com.,  108  Pa.  St.  559 125 

Dove  V.  Independent,  &c.,  41  Iowa  689 205 

Doyle  V.  School  Directors,  36  111.  App.  653  .     .     .        138,  140,  165 
Draper  v.  Public  Instruction  Commissioners,  66  N.  J.  L.  54   .     164 

XXV 


TABLE  OF  CASES 

[References  are  to  pages.] 

Drew  V.  Madison,  146  Iowa  721 255 

Dritt  V.  Snodgrass,  66  Mo.  286 190,  216,  225,  226 

Drum  V.  Miller,  135  N.  C.  204 173 

Dublin,  &c..  In  re,  14  Pa.  Co.  Ct.  464 103 

Dubuque,  &c.,  v.  Dubuque,  13  Iowa  555 112,  129 

Duffield  V.  Williamsport,  162  Pa.  St.  476 195 

Dullam  V.  WiUson,  53  Mich.  392 105 

DuU's  Estate,  1  Leg.  Op.  (Pa.)  125 15 

Dunten  v.  State,  172  Ind.  59 210 

Dyberry,  &c.,  v.  Mercer,  115  Pa.  St.  559 143 

Dyer  v.  School  District,  61  Vt.  96 270 

E 

Eakin  v.  Chapman,  44  Okla.,  51 274 

Earl  of  Thanet  v.  Gartham,  8  J.  B.  Moore  368 151 

East  Carroll  Parish,  &c.,  v.  Union  Parish,  &c.,  36  La.  An. 

806 255 

Eastman  v.  District,  &c.,  21  Iowa  590 159 

Easton  v.  Calendar,  11  Wend.  (N.  Y.)  90 86 

Eaton  &  Co.  v.  Royal,  36  Wash.  435 239 

Edalgo  V.  So.  Ry.  Co.,  129  Ga.  258 272 

Edinboro  Normal  School  v.  Cooper,  150  Pa.  St.  78    .     .     .     .  160 

Edinburgh,  &c.,  v.  Mitchell,  1  S.  D.  593 127 

Edmundson  v.  Independent  School  District,  98  Iowa  639  .     .  37 

Edson  V.  Hayden,  18  Wis.  627 152 

Edwards  v.  Trustees,  30  111.  App.  528 255 

Effingham  v.  Hamilton,  68  Miss.  523 235 

V.  Olson,  48  Kan.  565 233 

Eickhoff  V.  Sedalia,  &c.,  106  Mo.  App.  541 11 

Eighth  School  District  v.  Copeland,  2  Gray  (Mass.)  414    .     .  60 

Ellis  V.  School  District,  11  Gray  (Mass.)  487 274 

Elmore  v.  Overton,  104  Ind.  548 92,  138,  141,  216 

Elsberry  v.  Seay,  83  Ala.  614 9 

Emery  v.  Mariaville,  56  Me.  315 249 

Englehardt  v.  Yung's  Heirs,  76  Ala.  534 11,  13 

Erie,  &c.,  v.  Fuess,  98  Pa.  St.  600 57 

Ernst  V.  West  Covington,  116  Ky.  850 56 

Erwin  v.  St.  Joseph,  &c.,  12  Fed.  680 257 

Eubank  v.  Boughton,  98  Va.  499 208 

Everett  v.  Independent  School  District,  109  Fed.  697    ..     .  37 

Everts  v.  District,  &c.,  77  Iowa  37 128 

XX  vi 


TABLE  OF  CASES 

[References  are  to  pages.] 
F 

Fairchild  v.  Board,  &c.,  107  Cal  92 160 

Farmers,  &c.,  v.  School  District,  &c.,  6  Dak.  255 62 

Farnum's  Petition,  51  N.  H.  376 37 

Farrell  v.  Board,  &c.,  67  Misc.  Rep.  (N.  Y.)  187 97 

V.  School  District,  98  Mich.  43 163,  165 

V.  State,  32  Ala.  557 83 

Farrier  v.  State,  48  N.  J.  L.  613 109 

Faulk  V.  McCartney,  42  Kan.  695 122 

Favorite  v.  Board,  &c.,  235  111.  314 222 

Fay  V.  Jumel,  35  La.  An.  368 90 

Feathergill  v.  State,  33  Ind.  App.  683 227 

Ferguson  v.  True,  66  Ky.  255 149,  154 

Ferriter  v.  Tyler,  48  Vt.  444 159,  213 

Fertich  v.  Michener,  111  Ind.  472  .     .   213,  214,  215,  220,  221,  223 

Field  V.  Com.,  32  Pa.  St.  478 86,  89,  105 

V.  Robinson,  198  Pa.  St.  638 195 

V.  School  District,  &c.,  83  Kan.  186 89 

Finch  V.  Toledo,  &c.,  36  Ohio  St.  37        57,  58 

Fine  v.  Stewart,  48  S.  W.  (Tenn.)  371  249 

First  Nat'l  Bk.  v.  Bourne,  131  S.  W.  (Mo.)  896 248 

V.  Rush,  &c.,  81  Pa.  St.  307 249 

V.  Whisenhunt,  94  Ark.  583, 22,  131,  249,  251 

First  School  District  v.  Ufford,  52  Conn.  44 44 

Fisher  v.  Board,  &c.,  44  La.  An.  184 250 

V.  School  District,  &c.,  4  Cush.  (Mass.)  494  .     .     .     .        60,  131 

Fiske  V.  Huntington,  179  Mass.  571 263 

Fitch  V.  Smith,  57  N.  J.  L.  526 93,  148 

Flanary  v.  Barrett,  146  Ky.  712 152 

Fleishel  v.  Hightower,  62  Ga.  324 66 

Fletcher  v.  Lincolnville,  20  Me.  439 40 

Fluty  V.  School  District,  &c.,  49  Ark.  94 121 

Flynn  v.  Barnes,  156  Ky.  498 139 

Folk  V.  Milwaukee,  108  Wis.  359 56 

Folsom  V.  School  Directors,  91  111.  402 37,  257 

Fontain  v.  Ravenel,  17  How.  (U.  S.)  393 184 

Ford  V.  KendaU,  &c.,  121  Pa.  St.  543 56,  57,  233 

Foster  v.  Boston,  127  Mass.  290 72 

V.  Reynolds,  66  Misc.  Rep.  (N.  Y.)  133 99 

Fowler  y.  Brooks,  188  Mass.  64 113 

Fox  V.  People,  84  111.  App.  270 173 

xxvii 


TABLE  OF  CASES 

[References  are  to  pages.] 

Fractional  School  District,  &c.,  v.  Metcalf,  93  Mich.  497   .     .      44 

Franklin,  &c.,  In  re,  1  Pa.  Com.  PI.  128 29 

Franklin,  &c.,  v.  Board,  &c.,  75  Mo.  408 112 

Frazier  v.  School  District,  24  Mo.  App.  250 162 

Freel  v.  Crawfordsville,  142  Ind.  27 56,  57 

Freeman  v.  Bourne,  170  Mass.  289 35,  91 

French  v.  Davidson,  143  Cal.  658 195 

Fry  V.  Athol,  4  Cush.  (Mass.)  250 30 

Ft.  Smith,  &c.,  v.  Howe,  62  Ark.  481 277 

FuUam  v.  Brookfield,  9  Allen  (Mass.)  1 119 

Fuller  V.  Fuller,  23  Fla.  236 11 

Fulton  V.  Jenks,  9  Pa.  Co.  Ct.  126 278 

G 

Gaddis  v.  School  District,  92  Neb.  701 25 

Gardiner,  Appeal  of,  4  R.  I.  602 88 

Garrett  v.  McAdams,  &c.,  —  Tex.  Civ.  App.  — 68 

Gaskill  V.  Dudley,  6  Mete.  (Mass.)  546 54 

Gates  V.  Beckwith,  2  Ohio  Dec.  394 272 

V.  Renfroe,  7  La.  An.  569        15 

V.  School  District,  53  Ark.  468 148 

Gear  v.  Gray,  37  N.  E.  (Ind.)  1059 147 

Gearhart  v.  Dixon,  1  Pa.  St.  224 115,  278 

Gehling  v.  School  District,  &c.,  10  Neb.  239 132 

Genessee,  &c.,  v.  McDonald,  98  Pa.  St.  444 112 

Gentle  v.  School  Inspectors,  73  Mich.  40 44 

George  v.  Second  School  District,  6  Mete.  (Mass.)  497  .  36,  74,  272 

Gerke  v.  Purcell,  25  Ohio  St.  229 278 

Gibbons  v.  Southwest  School  District,  4  Allen  (Mass.)  508     .      60 

Gibson  v.  School  District,  &c.,  36  Mich.  404 79 

Gildersleeve  v.  Board,  &c.,  17  Abb.  Pr.  (N.  Y.)  201  .     .     .     .     106 
Giles  V.  School  District,  &c.,  31  N.  H.  304  .     .     .     .       38,  40,  106 

Gillan  v.  Board,  &c.,  88  Wis.  7 162,  165 

Gilley  v.  Gilley,  79  Me.  292 15 

Gilman  v.  Bassett,  33  Conn.  298 36,  37,  60 

Ginn  &  Co.  v.  Schoolbook  Board,  &c.,  62  W.  Va.  428    ..     .    239 

Gleese,  In  re,  50  N.  Y.  Super.  Ct.  473 160 

Glidden  v.  Hopkins,  47  111.  525       129,  248 

Glidden,  &c.,  v.  School  District,  &c.,  143  Wis.  617    ..     .   77,  127 

Good  V.  Howard,  174  Ind.  358 25 

Goodwin  v.  Perkins,  39  Vt.  598 Ill 

xxviii 


TABLE  OF  CASES 

[References  arc  to  pages.] 

Goody  V.  Colchester,  &c.,  15  Eng.  L.  &  E.  596 129 

Goodyear  v.  School  District,  17  Oreg.  517 147 

Goose  River  Bank  v.  Willow  Lake,  &c.,  1  N.  D.  26       .      142,  250 

Gordon  v.  Cornes,  47  N.  Y.  608 260 

Gott  V.  Berea  College,  150  Ky.  376 184,  226 

Gould  V.  Board,  &c.,  34  Hun  (N.  Y.)  16 24,  37 

Goulding  v.  Peabody,  170  Mass.  483 35 

Grady  v.  Landram,  111  Ky.  100 120 

Grahn  v.  State,  6  Ohio  N.  P.  182 21 

Gravel  Hill  School   District  v.  Old  Farm  School  District, 

55  Conn.  244 44 

Graves  v.  Jasper,  &c.,  2  S.  D.  414 64 

V,  Joint  School  Inspectors,  &c.,  102  Mich.  634 45 

Gray  v.  Board,  &c.,  231  111.  63 249,  276 

V.  Sheldon,  8  Vt.  402 30 

Graziani  v.  Burton,  30  Ky.  L.  Rep.  180 241 

V.  Com.,  30  Ky.  L.  Rep.  119 241 

Gregory  v.  Small,  39  Oliio  St.  346 164 

Greenbanks  v.  Boutwell,  43  Vt.  207 37 

Green  Bay  Lumber  Co.  v.  Odebolt,  125  Iowa  227      ...     .  68 

Greenlee  v.  Newton,  &c.,  104  N.  E.  (Ind.)  610 180 

Green  Mountain,  &c.,  v.  Savage,  15  Mont.  189 55 

Griggs  V.  School  District,  &c.,  87  Ark.  93 143 

Griswold  v.  Hepburn,  63  Ky.  20 5 

Grove  v.  Board,  &c.,  20  111.  532 27 

Guernsey  v.  Pitkin,  32  Vt.  224 219 

Gunn  V.  Tacket,  67  Ga.  725 109 

H 

Hackett  v.  Brooksville,  &c.,  120  Ky.  608 156 

Hadley  v.  Chamberlin,  11  Vt.  618 51 

Haile  v.  Young,  74  Tenn.  501 92 

Haines  v.  School  District,  &c.,  41  Me.  246 274 

Hale  V.  Risley,  69  Mich.  599 142 

HaU  V.  School  District,  &c.,  24  Mo.  App.  213  ...     .      151,  152 

Halleck  v.  Boylston,  117  Mass.  469 271 

Halliday  v.  Hildebrandt,  97  Iowa  177 258 

Hall's  Free  School  v.  Home,  80  Va.  470 9 

Ham  V.  New  York,  70  N.  Y.  459 57 

Hamilton,  Matter  of,  148  N.  Y.  310 268 

Hamilton  v.  San  Diego  County,  108  Cal.  273 26,  54 

xxix 


TABLE  OF  CASES 

[References  are  to  pages.] 

Hamlin  v.  Kassafer,  15  Oreg.  456 108,  110 

Hammond  v.  Hyde  Park,  195  Mass.  29 196,  197 

Hamtramck  v.  Holihan,  46  Mich.  127 73 

Hance  v.  Fairhurst,  47  J.  P.  53 13 

Hancock  v.  Hazzard,  12  Cush.  (Mass.)  112 134 

Hand  V.  Deady,  79  Hun  (N.  Y.)  75 Ill 

Hanna  v.  Wright,  116  Iowa  275 115 

Hansen  v.  Holstein,  155  Iowa  264 247 

Hare  v.  Board,  &c.,  113  N.  C.  9 207 

Harkness  v.  Hutcherson,  90  Tex.  383 164 

Harley  v.  Lindemann,  129  Wis.  514 194 

Harmony,  &c.,  v.  Osborne,  9  Ind.  458 39 

Harrington  v.  School  District,  &c.,  30  Vt.  155  ....  23,  135 
Harris  v.  Salem,  72  N.  H.  424 56,  211 

V.  School  District,  &c.,  28  N.  H.  58 51 

Hart  V.  School  District,  &c.,  2  Lane.  L.  Rev.  (Pa.)  346      .     .     158 

Hartford  v.  School  District,  45  Conn.  462 277 

Hartwell  v.  Littleton,  13  Pick.  (Mass.)  229       ....      233,  238 

Hassett  v.  Carroll,  85  Conn.  23 22,  25,  95 

Hatfield,  &c.,  In  re,  2  Walk.  (Pa.)  169 29 

Hatfield  v.  Knight,  112  Ark.  83 66 

Haverhill  v.  Gale,  103  Mass.  104 182 

Haycroft  v.  Grigsby,  80  Mo.  App.  354 174 

Hayward  v.  School  District,  &c.,  2  Cush.  (Mass.)  419  .  .  130 
Hazen  v.  Lerche,  47  Mich.  626 148 

V.  Township  Board,  48  Mich.  188 150 

Heal  V.  Jefferson  Tp.,  15  Ind.  431 245 

Heard  v.  Calhoun,  &c.,  45  Mo.  App.  660 257,  258 

V.  School  Directors,  45  Pa.  St.  93 33,  104 

Heath  &  Co.  v.  Board,  &c.,  133  Mich.  681 235 

V.  Com.,  129  Ky.  835 242 

Heck  V.  State,  44  Ohio  St.  536 82 

Heidler,  In  re,  122  Pa.  St.  653 29 

Heizer  v.  Yohn,  37  Ind.  415 24 

Heller  v.  Stremmel,  52  Mo.  309 23,  24 

Hemme  v.  School  District,  &c.,  30  Kan.  377 79 

Hendricks  v.  Bobo,  12  La.  An.  620 247 

Hennon,  Ex  parte,  38  U.  S.  230 105 

Henricks  v.  State,  151  Ind.  454 33 

Herald  v.  Board,  &c.,  65  W.  Va.  765 77 

Heritage  v.  Dodge,  64  N.  H.  297 173 

Herold  v.  Parish  Board,  &c.,  —  La.  — 156 

XXX 


TABLE  OF  CASES 

[References  are  to  pages.] 

Herrington  v.  District,  &c.,  47  Iowa  11 100 

V.  Liston,  47  Iowa  11 123 

Hess  V.  Dodge,  82  Neb.  35 64 

Higbie  v.  New  York,  &c.,  122  N.  Y.  App.  Div.  483  ...     .      56 

Higgins  V.  Read,  8  Iowa  298 48,  50,  51,  275 

Hightower  v.  Slaton,  54  Ga.  108 153 

Hill  V.  Boston,  122  Mass.  344 56,  73 

Hilliard  v.  Austin,  17  Barb.  (N.  Y.)  141       279 

Hillsborough  v.  Deering,  4N.H.  86 15 

Hinkle's  Lessee  v.  Shadden,  32  Temi.  46 244 

Hines  v.  Mullins,  25  Ga.  696 11 

Hoag  V.  Durfey,  1  Aik.  (Vt.)  286 51 

Hobbs  V.  Germany,  94  Miss.  469 226 

Hodgkin  v.  Fry,  33  Ark.  716 41,  46 

Hodgkins  v.  Rockport,  105  Mass.  475 193,  196,  213 

Holbrook  v.  Faulkner,  55  N.  H.  311 41 

Holden  v.  Board,  &c.,  85  N.  J.  L.  370 66 

V.  Shrewsbury,  &c.,  38  Vt.  529 159 

Holland  v.  Da\nes,  36  Ark.  446 40 

HoUoway  v.  School  District,  &c.,  62  Mich.  153     .     .   122,  145,  151 

Hohnan  v.  School  District,  &c.,  34  Vt.  270 139 

V.  Trustees,  &c.,  77  Mich.  605 190,  191,  199 

Holt  V.  Watson,  71  Ark.  90 287 

Honey  Creek,  &c.,  v.  Barnes,  119  Ind.  213 126,  238 

Hood  V.  Lyan,  1  Allen  (Mass.)  103 46 

Hoole  V.  Kinkead,  16  Nev.  217       124 

Hooper  v.  Goodwin,  48  Me.  80 110 

Hopley  V.  Benton,  39  Okl.  223 251 

Home  u.  School  District,  &c.,  75  N.H.  411 149 

Hornung  v.  State,  116  Ind.  458 89 

Horton  v.  MobUe,  &c.,  43  Ala.  598 260 

V.  Ocheyedan,  49  Iowa  231 52 

Hotchkiss  V.  Plunkett,  60  Conn.  230 51 

Houghton  V.  Davenport,  23  Pick.  (Mass.)  435 48 

House  V.  Trustees,  &c.,  83  111.  368 135 

Houston  V.  Russell,  52  Vt.  110 275 

Hovey?;.  State,  119  Ind.  395 234 

Howard  v.  Forester,  109  Ky.  336 33 

V.  Trustees,  &c.,  31  Ky.  L.  Rep.  399 274 

V.  Worcester,  153  Mass.  426 56,  57 

HoweU  V.  State,  71  Ga.  224 82 

Hudspeth  v.  WaUis,  54  Ark.  134 29 

xxxi 


TABLE   OF  CASES 

[References  are  to  pages.] 

Hufford  V.  Conover,  139  Ind.  151 91 

Hughes  V.  Board,  &c.,  13  Ohio  336 62 

V.  Goodell,  3  Pittsb.  R.  264 76 

V.  School  Directors,  8  Luz.  Leg.  Reg.  (Pa.)  284      ....  123 

Hunt  V.  Hapley,  120  Iowa  695 248 

V.  School  District,  &c.,  14  Vt.  300        40 

Hurd  V.  Walters,  48  Ind.  148 75 

Hurlburt  v.  Boxford,  171  Mass.  501 54 

Huse  y.  Lowell,  10  Allen  (Mass.)  149 117 

Hutchins  v.  Durham,  137  N.  C.  68 197 

V.  School  District,  &c.,  128  Mich.  177       146 

Hutchinson  v.  Skinner,  21  Misc.  Rep.  (N.  Y.)  729    ...     .  155 

Hutton  V.  State,  23  Tex.  App.  386 173,  184 

Hysong  v.  Gallitzin,  &c.,  164  Pa.  St.  629 39,  155 

I 

Independent,  &c.,  v.  McClure,  136  Iowa  122 63 

Inglis  V.  State,  61  Ind.  212 133 

Interstate,  &c.,  v.  Philadelphia,  164  Pa.  St.  477 124 

Irvin  V.  Gregory,  86  Ga.  605 44,  182 

Ivison  V.  School  Com'rs,  39  Fed.  735 233 

J 

Jackson  v.  Independent,  &c.,  110  Iowa  313 163 

V.  Mason,  145  Mich.  338 17 

V.  Shera,  8  Ind.  App.  330 122,  144 

Jackson,  &c.,  v.  Hadley,  59  Ind.  534 238 

Jackson  School  v.  Grimes,  24  Ind.  App.  331 151 

Jackman  v.  Salisbury,  5  Gray  (Mass.)  413 270 

Jacobson  v.  Board,  &c.,  64  Atl.  (N.  J.)  609 125 

Jacques  v.  Litle,  51  Kan.  300 105,  112 

Jameson  v.  Board,  &c.,  74  W.  Va.  389 105 

Jarvis  v.  Robertson,  126  Ind.  281 53 

V.  Shelby,  &c.,  62  Ind.  257 24 

Jay  V.  School  District,  &c.,  24  Mont.  219 149 

Jeffries  v.  Board,  &c.,  135  Ky.  488 101 

Jenkins  v.  Andover,  103  Mass.  94 2,  6,  8 

V.  Doughty,  &c.,  39  Me.  220 65 

Jewell  V.  Abington,  2  Allen  (Mass.)  592 137 

Jewett  V.  Matteson,  148  Ky.  820 104 

xxxii 


TABLE  OF  CASES 

[References  are  to  pages.] 

Johnson  v.  Board,  &c.,  166  N.  C.  468 208 

V.  Connelly,  88  Kan.  861 143 

V.  De  Hart,  72  Ky.  640 89 

V.  Dole,  3  N.  H.  328 272 

V.  Dole,  4  N.  H.  478 22 

V.  Dye,  142  Mo.  App.  424 120 

V.  Ginn,  105  Ky.  654 233,  241 

V.  Sanders,  131  Ky.  537 100 

V.  School,  &c.,  117  Iowa  319 128 

Johnson,  &c.,  v.  Citizens  Bank,  81  Ind.  515 78 

Johnson  Pub.  Co.  v.  Blease,  91  S.  C.  55   237 

V.  Com.,  30  Ky.  L.  Rep.  148 241 

Joint  School  District,  &c.,  v.  School  District,  &c.,  92  Wis.  608  34 

V.  Wolfe,  12  Wis.  685 86 

Joliet  V.  Werner,  166  111.  34 201 

Jones  V.  Board,  &c.,  88  Mich.  371 231,  235 

V.  Cody,  132  Mich.  13 225,  226 

V.  Fitchburg,  211  Mass.  66 192 

V.  Hungerford,  4  Gill  &  J.  (Md.)  402 81 

V.  Nebraska  City,  1  Neb.  176 165 

V.  School  District,  &c.,  8  Kan.  362 146 

V.  School  District,  &c.,  110  Mich.  363 128 

V.  Surprise,  64  N.  H.  243 117 

Jordan  v.  School  District,  &c.,  38  Me.  164  ...     .      40,  41,  126 

Joyner  v.  School  District,  &c.,  3  Gush.  (Mass.)  567  ...     .  274 

Judd  V.  Thompson,  125  Mass.  553 271 

K 

Kaine  V.  Com.,  101  Pa.  St.  490 .    205 

Kane  v.  School  District,  &c.,  52  Wis.  502 128,  250 

Kane  &  Co.  v.  School  District,  &c.,  5  Kan.  App.  260     ..     .     101 

Katz  V.  Board,  &c.,  162  N.  Y.  App.  Div.  132 57 

Keating  v.  Neary,  9  Kulp  (Pa.)  421 161 

Keeler  v.  Frost,  22  Barb.  (N.  Y.)  400 100 

V.  Hewitt,  109  Gal.  146 143,  201 

KeUison  v.  School  District,  &c.,  20  Mont.  153       ...      161,  162 

Kellogg  V.  School  District,  &c.,  13  Okla.  285 249 

Kennedy  v.  Board,  &c.,  82  Gal.  483 160 

Kenyon  v.  Clark,  2  R.  I.  67 54 

Keokuk,  &c.,  V.  People,  161  111.  132 269 

Kerr  v.  Wooley,  3  Utah  456 273 

xxxiii 


TABLE  OF  CASES 

[References  are  to  pages.] 

Kester  v.  School  District,  &c.,  48  Wash.  486 142 

Keweenaw  Association  v.  School  District,  &c.,  98  Mich.  437  .  54 

Keyser  v.  District,  &c.,  35  N.  H.  477 59,  60 

Kidder  v.  CheUis,  59  N.  H.  473 142 

Kiefer  v.  Troy,  &c.,  102  Ind.  279 256 

Kimball  v.  School  District,  23  Wash.  520 140 

V.  School  District,  &c.,  28  Vt.  8       60 

King  V.  Corporation  of  Bedford  Level,  6  East.  356    .     .     .•    .  107 

V.  Jefferson,  &c.,  71  Mo.  628 227 

V.  State,  74  Tex.  Cr.  App.  658 81 

Kingsbury  v.  Centre  School  District,  12  Mete.  (Mass.)  90     .  100 

Kingsley  v.  Plum,  &c.,  2  Pa.  St.  28 52 

Kinnare  v.  Chicago,  171  111.  332 56 

Kinney  v.  Howard,  133  Iowa  94 89,  121 

Kinsey  v.  State,  98  Ind.  351 U 

Kinzer  v.  Directors,  &c.,  129  Iowa  441 184,  223 

Kirchner  v.  Board,  &c.,  141  Iowa  43 262 

Kirkpatrick  v.  Independent,  &c.,  53  Iowa  585 164 

Kline  v.  School  Directors,  2  Lane.  L.  Rev.  (Pa.)  321      ...  105 

lOine,  &c..  In  re,  3  Pa.  Co.  Ct.  546 105 

Knabe  v.  Board,  &c.,  67  Mich.  262 77,  96 

Knowles  v.  Board,  &c.,  33  Kan.  692 24 

V.  School  District,  &c.,  63  Me.  261 38 

Knowlton  v.  Logansport,  75  Ind.  103 253 

Knox  V.  Board,  &c.,  45  Kan.  152 205 

Kuenster  v.  Board,  &c.,  134  lU.  165 138 

Kuhn  V.  Board,  &c.,  4  W.  Va.  499 27 

V.  Thompson,  168  Mich.  511 30 

L 

Labatt  v.  New  Orieans,  38  La.  An.  289        250 

Lagow  V.  Hill,  143  111.  App.  523 99 

Lake  Farm  v.  Kalamazoo,  179  Mich.  171 181 

Lake  View,  &c.,  v.  People,  87  111.  303 214 

Lamaster  v.  Wilkerson,  143  Ky.  226 100 

Lander  v.  School  District,  33  Me.  239 41,  246 

V.  Seaver,  32  Vt.  114 167,  170,  174 

Landis  v.  School  District,  57  N.  J.  L.  509 259 

Lane  v.  Wevmouth,  10  IMetc.  (Mass.)  462   ......     .  54 

V.  Woodbury,  &c.,  58  Iowa  462 57 

Lawrence  v.  Trauer,  136  111.  474 115 

xxxiv 


TABLE  OF  CASES 

'  [References  are  to  pages.] 

Learock  v.  Putnam,  111  Mass.  499 178,  193 

Le  Couteulx  v.  Buffalo,  33  N.  Y.  333 9,  37,  84 

Leddy  v.  Board,  &c.,  160  lU.  App.  187 166 

Lee  V.  Huff,  61  Ark.  494 141 

V.  Mitchell,  108  Ark.  1 115 

V.  Parry,  4  Denio  (N.  Y.)  125 100 

V.  York,  &c.,  163  Ind.  339 146 

Leeper  v.  State,  103  Tenn.  500 231,  233 

Lefevre  v.  Besterling,  137  S.  W.  (Tex.)  1159 113 

Lehew  v.  Brummell,  103  Mo.  546 206 

Leighton  v.  Ossipee,  &c.,  66  N.  H.  548 39 

Leland  y.  School  District,  &c.,  77  Minn.  469 146 

Lessard  v.  Revere,  171  Mass.  294 67 

Lewis  V.  Bateman,  26  Utah  434 77 

Libby  v.  Douglass,  175  Mass.  128 147,  151 

Linskie  v.  Kerr,  34  S.  W.  (Tex.)  765 11 

Little  V.  Little,  131  Mass.  367 260,  267,  268 

V.  MerrUl,  10  Pick.  (Mass.)  543 47 

Littlewort  v.  Davis,  50  Miss.  403 22,  255 

Lockhart  v.  Troy,  48  Ala.  579 109 

Locker  V.  Keiler,  110  Iowa  707 37 

London  School  Board  v.  Jackson,  7  Q.  B.  D.  502       ....      13 

Louisiana,  &c.,  v.  State  Board,  120  La.  471 270 

Lower  Allen,  &c.,  v.  Shiremanstown,  &c.,  91  Pa.  St.  182    .     .     252 

Luchini  v.  Police  Jury,  126  La.  972 97 

Lyndall  v.  High  School  Committee,  19  Pa.  Super.  Ct.  232      .     166 
Lyon  V.  Adamson,  7  Iowa  509 118 


M 

McCarton  v.  City  of  New  York,  149  N.  Y.  App.  Div.  516      .      58 

McCaskill  v.  Bower,  126  Ga.  341 181 

McCloskey  v.  School  District,  &c.,  134  Mich.  235     ...     .     139 

McClure  v.  Tipton,  79  Mo.  App.  80 56 

McCoUum  V.  Adams,  110  S.  W.  (Tex.)  526 88 

McCormac  v.  Robeson  County,  90  N.  C.  441 32 

McCormick  v.  Burt,  95  111.  263 103,  190,  216 

McCoy  V.  Curtice,  9  Wend.  (N.  Y.)  17 100,  107 

McCraw  v.  Williams,  33  Gratt.  510 Ill 

McCrea  v.  Pine  Township,  &c.,  145  Pa.  St.  550 162 

McCuUy  V.  Board,  &c.,  63  N.  J.  L.  18 35 

McCutchen  v.  Windsor,  55  Mo.  149 163,  164,  165 


XXXV 


TABLE   OF  CASES 

[References  are  to  pages.] 

McFarland  v.  Goins,  96  Miss.  67 203 

McGillivray  v.  Joint  School  District,  &c.,  112  Wis.  354     38, 120, 128 

McGinn  v.  Willey,  6  Cal.  App.  Ill 146 

McGinnis  v.  Board,  &c.,  32  Ky.  L.  Rep.  1289 95 

McGlone  v.  Zornes,  32  Ky.  L.  Rep.  965       106 

McGrail  v.  Kalamazoo.  94  Mich.  52 72 

McKay  v.  Barnett,  21  Utah  239 147 

McKenna  v.  Kimball,  145  Mass.  555 57,  73 

McKinney  v.  Board,  &c.,  144  Ky.  85 258 

McLean  v.  Wliite,  216  Mass.  62 121 

McLellan  v.  St.  Louis  Public  Schools,  15  Mo.  App.  362      .     .     159 

McLoud  V.  Selby,  10  Conn.  390 54 

McMillan  v.  School  Committee,  107  N.  C.  609 209 

McNees  v.  McGill,  4  Ky.  L.  Rep.  632 262 

V.  School,  &c.,  133  Iowa  120 237 

McNeil  V.  Boston,  178  Mass.  326 56 

McNish  V.  State,  74  Neb.  261 183 

McPheeters  v.  Wright,  110  Ind.  519 256 

McShane  v.  School  District,  70  Mo.  App.  624 146 

McSween  v.  Board,  &c.,  129  S.  W.  (Tex.)  206 198 

Mackenzie  v.  School,  &c.,  72  Lid.  189 118 

Maher  v.  State,  32  Neb.  354 43 

Malloy  V.  Board,  &c.,  102  Cal.  642 98 

Malone's  Estate,  /n  re,  21  S.  C.  435 9 

Maloy  V.  Madget,  47  Ind.  241 244 

Mann  v.  Best,  62  Mo.  491 255 

V.  State,  116  Ind.  383 256 

Marchant  v.  Langworthy,  6  Hill  (N.  Y.)  646 44,  47 

Marion  v.  Board,  &c.,  97  Cal.  606 145 

Marion  M.  R.  Co.  v.  Alexander,  63  Kan.  72 260 

Markey  v.  School  District,  &c.,  58  Neb.  479     ..     .   101,  120,  128 

Marshall  v.  Donovan,  10  Bush  (Ky.)  681 3,  5 

Marx,  7n  r-e,  5  Abb.  N.  C.  (N.  Y.)  224 11 

Mason  v.  School  District,  &c.,  20  Vt.  487 47 

Mathews  v.  Board,  &c.,  127  Mich.  530 196 

Matteson  v.  Rosendale,  37  Wis.  254 275 

Maxcy  v.  Oshkosh,  144  Wis.  238 25,  183 

Maxon  v.  School,  &c.,  5  Wash.  142 22,  71 

Maynard,  Merrill  &  Co.  v.  Chowning,  31  Ky.  L.  Rep.  1340    .     240 

Merrick  v.  Amherst,  12  Allen  (Mass.)  508 7 

Merrill  v.  Emery,  10  Pick.  (Mass.)  507 10 

Merritt  v.  Farris,  22  111.  303 47,  62,  272 

xxxvi 


TABLE  OF  CASES 

[References  are  to  pages] 

Mest  V.  School  District,  &c.,  2  Woodw.  (Pa.)  257      ...     .  97 

Metcalf  V.  State,  21  Tex.  App.  174 214 

V.  Williams,  104  U.  S.  93 118 

Meyer  v.  School  District,  &c.,  4  S.  D.  420        250 

Miahle  v.  Fournet,  13  La.  An.  607 112 

Milford  V.  Powner,  126  Ind.  528 144 

V.  Zeigler,  1  Ind.  App.  138 122,  149 

Millard  v.  Board,  &c.,  19  111.  App.  48 38 

Mills  V.  Collins,  67  Iowa  164 122 

V.  Meyers,  24  Ky.  L.  Rep.  971 242 

V.  School  Directors,  &c.,  154  111.  App.  119 209 

Mingo  V.  Colored  Common  School,  &c.,  113  Ky.  475     ...  144 

Minnetonka,  &c.,  v.  Board,  &c.,  41  Okla.  541 67 

Mitchell  V.  Brown,  18  N.  H.  315 49 

Mitchelltree,  &c.,  v.  Carnahan,  42  Ind.  App.  473       ....  251 

Montenegro-Riehm  Music  Co.  v.  Board,  &c.,  147  Ky.  720      .  96 

Montgomery  v.  State,  35  Neb.  655 148 

Monticello  Bank  v.  Coffin's  Grove,  &c.,  51  Iowa  350     ...  79 

Moore  v.  Independent,  &c.,  55  Iowa  654 97 

V.  Monroe,  64  Iowa  367 158 

V.  Newfield,  4  Me.  44 45 

Morbeck  v.  State,  28  Ind.  86 134 

Morehead  v.  Cartwright,  122  Mo.  App.  257 208 

Morganton,  &c.,  v.  Morganton,  &c.,  150  N.  C.  680  .     .     .     .  67 

Morrell,  &c.,  v.  Com.,  32  Ky.  L.  Rep.  1383 262 

Morris  v.  School  District,  63  Ark.  149 58 

V.  School  District,  12  Me.  293 126 

Morrison  v.  Lawrence,  181  Mass.  127 194 

V.  Lawrence,  186  Mass.  459 191 

V.  McFarland,  51  Ind.  206 164 

Morrow  v.  Wood,  35  Wis.  58 243 

Morrow  County  v.  Hendryx,  14  Oreg.  397 34 

Morse  v.  Ashley,  193  Mass.  294 50,  103 

Morton  v.  Lee,  28  Kan.  286 109 

Morville  v.  Fowle,  144  Mass.  109 100 

Moultonborough  v.  Tuttle,  26  N.  H.  470 137 

Mount  Hermon  Boys  School  v.  Gill,  145  Mass.  139,  146    .     .  10 
Mount  Pleasant,  &c.,  In  re,  10  Pa.  Co.  Ct.  588    ...     .     28,  29 

Mouser  v.  Spaulding,  29  Ky.  L.  Rep.  1071        28 

Mowbry  v.  Mowbry,  64  111.  383 11,  13 

Mulhern  v.  McDavitt,  16  Gray  (Mass.)  404 11,  13 

Mulhgan  v.  School  District,  &c.,  241  Pa.  St.  204 23 

xxxvii 


TABLE  OF  CASES 

[References  are  to  pages.] 

MuUins  V.  Belcher,  142  Ky.  673 207 

Munfordville,  &c.,  v.  Board,  &c.,  155  Ky.  382 208 

Muskegon  v.  Wright,  176  Mich.  6 181 

Muzzy  V.  Shattick,  d  al,  1  Denio  (N.  Y.)  233 133 

Myer  v.  Crispell,  28  Barb.  (N.  Y.)  54 43,  264 

Myers  Pub.  Co.  v.  White  River,  &c.,  28  Ind.  App.  91  .     .     .  229 

N 

National,  &c.,  v.  Board,  &c.,  159  U.  S.  262 Ill 

V.  Independent,  &c.,  39  Iowa  490 249 

V.  Huntington,  81  Conn.  632 67 

Nelson  v.  Homer,  48  La.  An.  258 260 

Nessle  v.  Hun,  1  Ohio  N.  P.  140 158 

Neville  v.  School  Directors,  36  111.  71 140 

V.  School  Directors,  77  111.  628 140 

Newark,  &c..  In  re,  70  Atl.  (N.  J.)  881 181 

Newcomb  v.  Rockport,  183  Mass.  74  .     . 80 

Newell  V.  School  Directors,  68  111.  514 249 

New  Orleans  v.  Salmen  Brick,  &c.,  Co.,  135  La.  828      ...  277 

New  Providence  v.  McEachron,  35  N.  J.  L.  528 134 

Nichols  V.  School  Directors,  93  111.  61 39,  76 

Niles  V.  Orange  Training  School,  63  N.  J.  L.  528 201 

N.  0.  Nelson  Co.  v.  Stephenson,  —  Tex.  Civ.  App.  —  .     .     68,  69 

Northrop  v.  Richmond,  105  Va.  335 212 

North  Troy,  &c.,  v.  Troy,  80  Vt.  16 30 

Norton  v.  Lakeside,  &c.,  97  Ark.  71 29 

V.  Shelby  County,  118  U.  S.  425 109 

V.  Tinmouth,  &c.,  37  Vt.  521 98 

NoweU  V.  Wright,  3  Allen  (Mass.)  166 73 

Nye  V.  Marion,  7  Gray  (Mass.)  244 30 

0 

Oakes  v.  School  District,  &c.,  98  Mo.  App.  163 150 

O'Bannon  v.  Cole,  220  Mo.  697 20,  198 

O'Connor  v.  Francis,  42  N.  Y.  App.  Div.  375 140 

O'Connor  v.  Hendrick,  184  N.  Y.  421 155 

Offut  V.  Bourgeois,  16  La.  An.  163 146,  151 

Ogden  V.  Raymond,  22  Conn.  379 96,  107 

Ohio  Township  School  Directors,  In  re,  9  Pa.  Co.  Ct.  392      .  60 

Olive  V.  School  District,  &c.,  86  Neb.  135 48 

xxxviii 


TABLE  OF  CASES 

[References  are  to  pages.] 

Olney  School  District  v.  Christy,  81  111.  App.  304      ....  160 

Opinion  of  Justices,  1  Mete.  (Mass.)  580 180 

Opinion  of  Justices,  68  Me.  582 244 

Orrick,  &c.,  v.  Dorton,  125  Mo.  439 54 

Osborn  v.  Allen,  26  N.  J.  L.  388 13 

V.  Russell,  64  Kan.  507 195 

Ottawa,  &c.,  V.  Tinnon,  26  Kan.  1 205 

Owen  V.  Hay,  107  Ind.,  351 137 

V.  Hill,  67  Mich.  43        69 

Owens  V.  O'Brien,  78  Va.  116 104 

P 

Pace  V.  Jefferson,  &c.,  20  III.  644 278 

Pacific  M'f'g  Co.  v.  School  District,  &c.,  6  Wash.  121    ..     .  71 

Padelford  v.  Eagle  Grove,  117  Iowa  616       72 

Page  V.  Hardin,  8  B.  Mon.  (Ky.)  648 105 

V.  Township,  &c.,  59  Mo.  264 122 

Park  V.  Independent,  &c.,  65  Iowa  209 87,  164 

Parker  v.  Boston,  175  Mass.  501 71 

V.  School  District,  5  Lea  (Tenn.)  525 154,  159 

V.  Titcomb,  82  Me.  180 32 

Parks  V.  West,  108  S.  W.  (Tex.)  466 261 

Parman  v.  School  Inspectors,  49  Mich.  63 44 

Parody  v.  School  District,  15  Iowa  514 63 

Pasadena  School  District  v.  City  of  Pasadena,  166  Cal.  7  .     .  23 

Pass,  &c.,  V.  Hollywood,  &c.,  156  Cal.  416 32 

Passage  v.  Board,  &c.,  19  Mich.  330 47 

Patrick  v.  Fletcher,  149  Ky.  193 106 

Patterson  v.  Nutter,  78  Me.  509 136,  167 

Pearce  v.  Olney,  5.  R.  I.  269 11 

Pearsall  v.  Woods,  50  S.  W  (Tex.)  959 143 

Peay  v.  Talbot,  39  Tex.  335 265 

Peck  V.  Claflin,  105  Mass.  420 10 

V.  Smith,  41  Conn.  442 185 

Peers  v.  Board,  &c.,  72  111.  508 96 

Pennsylvania.  &c.,  v.  Board,  &c.,  20  W.  Va.  360  .     .     .      100,  122 

V.  Allen,  6  Wend.  (N.  Y.)  487 46 

V.  Allen,  155  111.  402 29 

V.  Beach,  77  111.  52 109 

People  V.  Board,  &c.,  49  Cal.  684 .231 

V.  Board,  &c.,  127  111.  613 205 

xxxix 


TABLE   OF  CASES 

[References  are  to  pages.] 

People  V.  Board,  &c.,  175  111.  9       231 

V.  Board,  &c.,  177  111.  572 195,  197 

V.  Board,  &c.,  234  111.  422 199 

V.  Board,  &c.,  245  111.  334 158 

V.  Board,  &c.,  255  111.  568 22 

V.  Board,  &c.,  18  Mich.  400 202,  205,  209 

V.  Board,  &c.,  212  N.  Y.  463 166 

V.  Board,  &c.,  160  N.  Y.  App.  Div.  557 166 

V.  Board,  &c.,  13  Barb.  (N.  Y.)  400 6,  9 

V.  Board,  &c.,  48  Hun  (N.  Y.)  618       41 

V.  Board,  &c.,  69  Hun  (N.  Y.)  212 161 

V.  Board,  &c.,  82  Misc.  Rep.  (N.  Y.)  684 166 

V.  Caruthers,  &c.,  102  Cal.  184 257 

V.  Castro,  39  Cal.  65 261 

V.  City  of  Quincy,  101  111.  308 204 

V.  Collins,  34  How.  Pr.  (N.  Y.)  336 87 

V.  Copeland,  &c.,  55  Cal.  331 230 

V.  Crissey,  45  Hun  (N.  Y.)  19 8 

V.  Crossley,  261  111.  78 94 

V.  Dorsheimer,  55  How.  Pr.  (N.  Y.)  118 124 

V.  Draper,  63  Hun  (N.  Y.)  389 86,  104 

V.  Dupuyt,  71  111.  651 22 

V.  Easton,  13  Abb.  Pr.  N.  S.  (N.  Y.)  159 202 

V.  Eckler,  19  Hun  (N.  Y.)  609 87 

V.  Ekerold,  211  N.  Y.  386 20,  198 

V.  Frost,  32  111.  App.  242 115 

V.  Gallagher,  93  N.  Y.  438 202,  206 

V.  Hendrickson,  125  N.  Y.  App.  Div.  256      ...       17,  19,  181 

V.  Hooper,  13  Hun  (N.  Y.)  639 33 

V.  Hyde,  89  N.  Y.  11 161 

V.  Inglis,  161  111.  256 86 

V.  Keechler,  194  111.  235 33 

V.  King's,  &c.,  42  Hun  (N.  Y.)  456 124 

V.  Mayer,  &c.,  4  N.  Y.  419 265 

V.  Mays,  17  111.  App.  361 91 

V.  Medical  Soc,  24  Barb.  (N.  Y.)  570 213 

V.  N.  Y.  Law  School,  68  Hun  (N.  Y.)  118 201 

V.  Oakland,  &c.,  55  Cal.  331        230 

V.  Olmstead,  27  Barb.  (N.  Y.)  9 242 

V.  Peoria,  &c.,  216  111.  221       120 

,  V.  Peters,  4  Neb.  254 121,  122 

V.  Quincy,  &c.,  101  111.  308 233 

xl 


TABLE   OF  CASES 

[References  are  to  pages.] 

People  V.  Roche,  124  111.  9 84 

V.  School  Board,  161  N.  Y.  598 203 

V.  Sisson,  98  111.  335 257,  263 

V.  Skmner,  74  N.  Y.  App.  Div.  58 86 

V.  Skinner,  159  N.  Y.  162 87 

V.  Smith,  149  111.  549 100 

V.  Stone,  78  Mich.  635 89 

V.  Strawn,  265  111.  292 29,  31 

V.  Toledo,  &c.,  229  111.  327 274 

V.  Toledo,  &c.,  231  111.  414 262 

V.  Van  Siclen,  43  Hun  (N.  Y.)  537 98 

V.  Welsh,  225  111.  364 98 

V.  Wheaton  CoUege,  40  111.  186 222 

V.  Wright,  34  Mich.  371 275 

Perkins  v.  Newark,  &c.,  161  Fed.  767 131 

V.  School  District,  &c.,  61  Mo.  App.  512 152 

V.  Wolf,  17  Iowa  228 142 

Perot  V.  Philadelphia,  11  Phila.  181 97 

Perrizo  v.  Kesler,  93  Mich.  280 33,  35 

Perry  v.  Dover,  12  Pick.  (Mass.)  206 30,  40,  48 

Perryman  v.  Bethune,  89  Mo.  158 44 

Peters  v.  Warren  Township,  98  Mich.  54 36,  41,  47 

Petersilea  v.  Stone,  119  Mass.  465       ....     107,  108,  109,  110 

Pickering  v.  De  Rochemont,  66  N.  H.  377 40 

Pierce  v.  Carpenter,  10  Vt.  480 30 

V.  Union,  &c.,  46  N.  J.  L.  76 205 

Pittsburg  V.  Sterrett,  &c.,  204  Pa.  St.  635 277 

Place  V.  District,  &c.,  56  Iowa  573 143 

Plumbing  Supply  Co.  v.  Board,  &c.,  32  S.  D.  270      ....      69 
Plummer  &  Davis  v.  School  District,  &c.,  92  Ark.  236  .     .     .       67 

Plymouth  V.  Painter,  17  Conn.  585 110 

Pollard  V.  School  District,  &c.,  65  111.  App.  104 139 

Polzin  V.  Rand,  McNally  &  Co.,  250  111.  561 238 

Pond  V.  Negus,  3  Mass.  230 49,  269,  272 

Porter  v.  Powell,  79  Iowa  151 14 

Potts  V.  Breen,  167  111.  67 197 

Powell  V.  Board,  &c.,  97  111.  375 6,  8,  233,  259 

Powers  V.  Sanford,  39  Me.  183 274 

Presley  v.  Davis,  7  Rich.  Eq.  (S.  C.)  105 11 

Presque  Isle  County  v.  Thompson,  61  Fed.  914 55 

Price  V.  Barrett,  &c.,  9  Pa.  Co.  Ct.  395 61,  103 

Prideaux  v.  Mineral  Point,  43  Wis.  513 72 

xli 


TABLE  OF  CASES 

[References  are  to  pages.] 

Princeton  v.  Gebhart,  61  Ind.  187 24 

Pro^ddence  Bank  v.  Billings,  4  Pet.  (U.  S.)  514 266 

Pruitt  V.  Armstrong,  56  Ala.  306 153 

Public  Instruction  Com'rs  v.  Fell,  52  N.  J.  Eq.  689  ...     .  24 

Puget  Sound,  &c.,  v.  School  District,  &c.,  12  Wash.  118     .     .  70 

Putnam  v.  Irvington,  69  Ind.  80 142 

Q 

Queeny  v.  Higgins,  136  Iowa  573 210 

Quigley  v.  State,  5  Ohio  Cir.  Ct.  638 17,  19,  21 

Quinn  v.  Nolan,  7  Ohio  Dec.  585 167 

R 

Rand  v.  Wilder,  11  Gush.  (Mass.)  294 276 

Rand,  McNally  &  Co.  v.  Com.,  32  Ky.  L.  Rep.  1168     .     .     .  240 

V.  Hartranft,  32  Wash.  378 239 

V.  Royal,  36  Wash.  420 239 

Randolph  v.  Sanders,  22  Tex.  Civ.  App.  331 147 

Ratcliff  V.  Paris,  6  Neb.  539 91 

Rawson  v.  Spencer,  113  Mass.  40 35,  233 

Raybould  v.  Hardy,  7  Utah  368 32 

Ray  County  v.  Bentley,  49  Mo.  236 256 

R.  Connor  Co.  v.  Olson,  136  Wis.  13 69 

Rebenack,  In  re,  62  Mo.  App.  8 195 

Redfield  v.  School  District,  &c.,  48  Wash.  85 58 

Reed  v.  Acton,  117  Mass.  384 41,  43 

V.  Northfield,  13  Pick.  (Mass.)  94 72 

Reeves  v.  Ryder,  91  Kan.  639 43 

Reg.  V.  Hopley,  2  Fos.  &  F.  202 167 

Regan  v.  School  District,  &c.,  44  Wash.  523 43 

Regents,  &c.,  v.  Detroit,  &c.,  12  Mich.  138 119 

Reid  ?;.  Edina,  &c.,  73  Mo.  295 63 

Reubelt  v.  Noblesville,  106  Ind.  478 148 

Reynolds  v.  Board,  &c.,  66  Kan.  672 203 

V.  Little  FaUs,  &c.,  33  N.  Y.  App.  Div.  88 227 

V.  Moore,  9  Wend.  (N.  Y.)  35 54 

Reynolds,  &c.,  v.  McCabe,  72  Tex.  57 27 

Rhobidas  v.  Concord,  70  N.  H.  90 211 

Rice  V.  Board,  &c.,  90  Atl.  (R.  I.)  419 83 

V.  McClelland,  58  Mo.  116 27,  55 

xlii 


TABLE   OF  CASES 

[References  are  to  pages.] 

Richards  v.  Raymond,  92  111.  612 233 

V.  School,  &c.,  132  Iowa  612 101,  131 

Richardson  v.  McReynolds,  114  Mo.  641      .     .        37,  49,  246,  257 

V.  School  District,  38  Vt.  602 160,  162 

V.  Sheldon,  1  Finn.  (Wis.)  624 51 

Richter  v.  Cordes,  100  Mich.  378 9 

Rideout  v.  School  District,  1  Allen  (Mass.)  232    ...     .     41,  45 

Riggs  V.  Horde,  25  Tex.  Supp.  456 149 

Ring  V.  Grout,  7  Wend.  (N.  Y.)  341 Ill 

Roach  V.  St.  Louis,  &c.,  77  Mo.  484 6 

V.  St.  Louis,  &c.,  7  Mo.  App.  567 229 

Robbins  v.  School  District,  10  Minn.  340 246 

Roberson  v.  Oliver,  189  Ala.  82 7,  227,  228 

Roberts  v.  Boston,  5  Gush.  (Mass.)  198       206 

V.  Louisville,  &c.,  16  Ky.  L.  Rep.  181       61 

Robie  V.  Sedgwick,  4  Abb.  Dec.  (N.  Y.)  73 27 

Robinson  v.  Dodge,  18  Johns.  (N.  Y.)  351 264 

V.  Howard,  84  N.  G.  151 233 

V.  School,  &c.,  96  111.  App.  604 159 

Rochford  v.  School  District,  &c.,  19  S.  D.  435 251 

Rock  Island,  &c..  Go.,  v.  Elliott,  59  Kan.  42 56 

Rockland  Gounty  v.  Grear,  57  Misc.  Rep.  (N.  Y.)  472  .     .     .     131 

Rodemer  v.  Mitchell,  90  Tenn.  65 32 

Rodgers  v.  Independent  School  District,  100  Iowa  317  ..     .      39 

Roeser  v.  Gartland,  75  Mich.  143 34,  94 

Roland  v.  Reading,  &c.,  161  Pa.  St.  102 97,  127 

Rolfe  V.  Gooper,  20  Me.  154       140 

Rose  V.  Bath,  10  Ind.  18 273 

Roth  V.  Marshall,  158  Pa.  St.  272 39 

Rowell  V.  School  District,  59  Vt.  658 94,  126 

Rowles  V.  Board,  &c.,  76  Kan.  361 203 

Rowzee  v.  Pierce,  75  Miss.  846 63 

Royce,  Appeal  of,  1  Walk.  (Pa.)  215 95 

Royse,  &c.,  v.  Reinhardt,  159  S.  W.  (Tex.)  1010 23 

Rudy  V.  School  District,  &c.,  30  Mo.  App.  113 137 

RuUson  V.  Post,  79  111.  567 14,  199 

Rumble  v.  Barker,  27  Ind.  App.  69 160 

Rumford  District  v.  Wood,  13  Mass.  192 24 

Ruohs  V.  Backer,  6  Heisk.  (Tenn.)  395 10 

Russell  V.  Dodds,  37  Vt.  497 74,   75 

V.  Lynnfield,  116  Mass.  365 115,  214 

V.  State,  13  Neb.  68 148 

xliii 


TABLE  OF  CASES 

[References  are  to  pages.] 

Rutledge  v.  McCue,  10  Kulp  (Pa.)  57 96 

Ryan  v.  Humphries,  150  Pac.  (Okla.)  1106       ....      101,  148 
V.  School,  &c.,  27  Minn.  433 142 

S 

Samuel  Benedict  School  v.  Bradford,  111  Ga.  801      ....    218 

Sanborn  v.  Neal,  4  Minn.  126 107,  118 

V.  School  District,  &c.,  12  Minn.  17 131 

San  Diego  v.  Daner,  97  Cal.  442 24 

Sanford  v.  Prentice,  28  Wis.  358 49 

Saranac,  &c.,  v.  Roberts,  208  N.  Y.  288       266 

Sayre  v.  Tompkins,  23  Mo.  443 27,  272 

Schofield  V.  School  District,  27  Conn.  499 75 

V.  Watkins,  22  111.  66 27,  100,  272 

School,  &c.,  V.  Powner,  126  Ind.  528 94 

V.  Ziegler,  1  Ind.  App.  138 112 

School  Board,  &c.,  v.  Board,  &c.,  146  Mich.  393 28 

V.  Thompson,  24  Okla.  1 243 

School  Commissioners  v.  Adams,  43  Md.  349 137 

School  Directors,  &c..  Appeal  of,  121  Pa.  St.  293      ....     105 

School  Directors  v.  Birch,  93  111.  App.  499 159 

V.  Breen,  60  111.  201 197 

V.  Crews,  23  111.  App.  367 151 

V.  First  National  Bank,  3  111.  App.  349 137 

V.  Fogleman,  76  111.  189 125 

V.  Hart,  4  111.  App.  224 148 

V.  Hudson,  ,88  111.  563 144,  159 

V.  Jennings,  10  111.  App.  643 148 

V.  McBride,  22  Pa.  St.  215 116,  122 

V.  Miller,  54  111.  338 119,  247 

V.  People,  186  111.  331 38,  99 

V.  People,  90  111.  App.  670 39 

V.  Reddick,  77  111.  628 140 

V.  School  Directors,  135  111.  464 34 

V.  Sprague,  78  111.  App.  390 115 

School  District,  &c.,  v.  Aetna,  &c.,  62  Me.  330 85 

V.  Aldrich,  13  N.  H.  139 30 

V.  Allen,  83  Ark.  491 115,  146 

V.  Arnold,  21  Wis.  657 38,  75,  81 

V.  Bailey,  12  Me.  254 37,  274 

V.  Bennett,  52  Ark.  511 104,  121 

xliv 


TABLE  OF  CASES 

[References  are  to  pages.] 

School  District,  &c.,  v.  Brown,  2  Kan.  App.  309       ....      64 

V.  Bryan,  51  Wash.  498 7 

V.  Carr,  55  N.  H.  452 45 

V.  Carson,  9  Colo.  App.  6 164 

V.  Carson,  10  Kan.  238       248 

V.  Castell,  105  Ark.  106 114 

V.  Coleman,  39  Neb.  391 34 

V.  Cowee,  9  Neb.  53 Ill 

V.  Cuming  County,  81  Neb.  606 273 

V.  Currier,  45  N.  H.  573 97 

V.  Dean,  17  Mich.  223 27 

V.  Edwards,  46  Wis.  150 244 

V.  Gage,  39  Mich.  484 153 

V.  Garrison,  90  Ark.  335 106,  110,  120 

V.  Gibbs,  52  Kan.  564 34 

V.  Goodwin,  81  Ark.  143 131 

V.  Graham,  —  Okla.  — 67 

V.  Greenfield,  64  N.  H.  84 35 

V.  Hale,  15  Colo.  367 160,  162,  163 

V.  Jackson,  110  Ark.  262 101,  145 

V.  Kimmel,  31  111.  App.  537 163 

V.  Lambert,  28  Oreg.  209 252 

V.  Lincoln  County,  9  S.  D.  291 33 

V.  Lombard,  2  Dill.  (U.  S.  C.  C.)  493 249 

V.  Lord,  44  Me.  374 45 

V.  Maury,  53  Ark.  471 159 

V.  Morse,  8  Cush.  (Mass.)  191 148 

V.  Oellien,  209  Mo.  464 49 

V.  Perkins,  21  Kan.  536 79 

V.  Pollard,  55  N.  H.  503 180 

V.  School  District,  &c.,  63  Ark.  543 29,  31,  33 

V.  School  District,  &c.,  45  Kan.  543 54 

V.  School  District,  &c.,  55  Neb.  716 33,  34 

V.  Sheldon,  26  Okla.  229 120 

V.  Shucks,  49  Colo.  526 160 

V.  Smith,  67  Vt.  566 41 

V.  State,  29  Kan.  57 26 

V.  Stone,  14  Colo.  App.  211 145,  160 

V.  Stough,  4  Neb.  357 59,  132,  249,  250 

V.  Sulhvan,  48  Kan.  624 129 

V.  Swain,  29  Kan.  152 79 

V.  Swayze,  29  Kan.  211 79 

xlv 


TABLE  OF  CASES 

[References  ure  to  pages.] 

School  District,  &c.,  v.  Tapley,  1  Allen  (Mass.)  49        ...      35 

V.  Thompson,  5  Minn.  280      .   -. 246 

V.  Village,  &c.,  13  Idaho  471 245 

V.  Western  Tube  Co.,  5  Wyo.  185 132,  249 

V.  Williams,  38  Ark.  454 56 

V.  Wolf,  78  Kan.  805 36 

V.  Yerrington,  108  Mich.  414 182 

V.  Young,  152  Mo.  App.  304 26 

V.  Young,  163  Mo.  App.  526 25 

V.  Zediker,  4  Okla.  599 27,  32 

School  Trustees  v.  People,  87  111.  303 235 

Schouweiler  v.  Allen,  17  N.  D.  510 64 

Schrimf  v.  Settegast,  36  Tex.  296 11 

Schultes  V.  Eberly,  82  Ala.  242 23 

Schwitzer  v.  Board,  &c.,  79  N.  J.  L.  342 124 

Scott  V.  Joint  School  District,  51  Wis.  554 162 

V.  Pendley,  114  Ky.  606 114 

V.  School  District,  46  Vt.  452 137,  140,  154,  163 

V.  School  District,  &c.,  67  Vt.  150 46,  147 

V.  Strobach,  49  Ala.  477 113 

Seabury  v.  Howland,  15  R.  I.  446 41 

Seaman  v.  Baughman,  82  Iowa  216 263 

Searsmont  v.  Farwell,  3  Me.  450 160 

Seeger  v.  Mueller,  133  111.  86 96 

Sewell  V.  Board,  &c.,  29  Ohio  St.  89 216 

Seymour  v.  School  District,  53  Conn.  504 153 

Shakespear  v.  Smith,  77  Cal.  638 117,  249 

Sharp  V.  Smith,  32  111.  App.  336 118 

Sharp's  Adm'r  v.  Collins,  74  Mo.  266 256 

Shaw  V.  Lockett,  14  Colo.  App.  413 266 

Sheehan  v.  Sturges,  53  Conn.  481 214 

Sheffield,  &c.,  v.  Andress,  56  Ind.  157 247 

Shelby  County  Council  v.  State,  155  Ind.  216       238 

Sheldon  v.  Central  School  District,  25  Conn.  224 59 

Sherman  v.  Charlestown,  8  Cush.  (Mass.)  160  .     .     .     .      193,  226 

Sherlock  v.  Winnetka,  68  111.  530 96,  257 

Sherwin  v.  Bugbee,  16  Vt.  439 46 

Shinn  v.  Ripley,  &c.,  39  W.  Va.  497 257 

Shipley  V.  Hacheney,  34  Oreg.  302 23 

Shoudy  V.  School  Directors,  32  111.  290 52 

Silver  v.  Cummings,  7  Wend.  (N.  Y.)  181 149 

Simmons  v.  People,  119  111.  617 94 

xlvi 


TABLE  OF  CASES 

[References  are  to  pages.] 

Singleton  v.  Austin,  27  Tex.  Civ.  App.  88 151 

Sioux  City  v.  Pratt,  17  Iowa  16 93 

Slattery  v.  School,  &c.,  43  Ind.  App.  58 96 

Smith,  Appeal  of,  4  R.  I.  590 87 

V.  Board,  &c.,  182  111.  App.  342 195 

V.  Bohler,  72  Ga.  546 269,  273 

V.  Bourbon  County,  127  U.  S.  105 66 

V.  Cheshire,  13  Gray  (Mass.)  318 249 

V.  Dillingham,  4  Barb.  (N.  Y.)  25 49 

V.  Jefferson,  &c.,  10  Colo.  17 91,  92 

V.  Proctor,  130  N.  Y.  319 257,  258 

V.  Reppard,  69  W.  Va.  211 104 

V.  School  District,  &c.,  40  Iowa  518 205 

V.  School  District,  &c.,  89  Kan.  225 151 

V.  School  District,  69  Mich.  589       140,  151 

V.  Simmons,  33  Ky.  L.  Rep.  503 273 

Snavely  v.  School  Directors,  1  Lane.  L.  Rev.  (Pa.)  9     .    .    .      61 

Sorenson  v.  Christiansen,  72  Wash.  16 62 

South  School  District  v.  Blakeslee,  13  Conn.  227  .    .  41,  42,  47,  51 

Spalding  Lumber  Co.  v.  Brown,  171  111.  487 67 

Sparta,  &c.,  v.  Mendell,  138  Ind.  188 163 

Spear  v.  Cummings,  23  Pick.  (Mass.)  224 137,  193 

Spedden  v.  Board,  &c.,  74  W.  Va.  181 178 

Spencer  v.  Joint  School  District,  &c.,  15  Kan.  259     ...     39,  75 

Spiller  V.  Woburn,  12  Allen  (Mass.)  127       158,  196 

Spring  V.  Wright,  63  111.  90 97 

Spring  Valley,  &c.,  v.  People,  157  111.  543 269 

Sproul  V.  Smith,  40  N.  J.  L.  314 52 

Stackhouse  v.  Clark,  52  N.  J.  L.  291 49 

Staff  on  V.  Lyon,  110  Mich.  260 .-    .     .      69 

Stallard  v.  White,  82  Ind.  278 37 

Stanhope  v.  School  Directors,  42  111.  App.  570 138 

Stanton  v.  Board,  &c.,  70  N.  J.  L.  336 261 

Staples  V.  Somerville,  176  Mass.  237 67 

Starbird  v.  School  District,  51  Me.  101 40,  45,  274 

State  V.  Albertson,  54  N.  J.  L.  72 86 

V.  Alford,  68  N.  C.  322 170 

V.  Bacon,  31  S.  C.  120 37 

V.  Bailey,  157  Ind.  324 16,  19 

V.  Blain,  36  Ohio  St.  429 152 

V.  Blegan,  26  S.  D.  106 Ill 

V.  Blossom,  19  Nev.  312 112 

xlvii 


TABLE   OF  CASES 

[References  are  to  pages.] 

State  V.  Board,  122  Tenn.  161 102 

V.  Board,  &c.,  94  Md.  334 56 

V.  Board,  &c.,  18  Nev.  173 231,  235 

V.  Board,  &c.,  7  Ohio  Dec.  129 207 

V.  Board,  &c.,  1  Ohio  N.  P.  151 159 

V.  Board,  &c.,  76  Ohio  St.  297 197 

V.  Board,  &c.,  35  Ohio  St.  368 231,  235 

V.  Board,  &c.,  21  Utah  401 195 

V.  Board,  &c.,  63  Wis.  234 199,  217 

V.  Board,  &c.,  96  Wis.  95 183 

V.  Bremond,  38  Tex.  116 260,  272 

V.Brown,  112  Minn.  370 195 

V.  Browning,  28  N.  J.  L.  556 33,  269 

«;.  Burchfield,  80  Tenn.  30  .     .     . 150 

V.  Burge,  95  Wis.  390 196,  197 

V.  Burton,  45  Wis.  150 153,  172,  213 

V.  Carroll,  38  Conn.  449 107,  108,  109 

V.  Central  Pac.  R.  Co.,  21  Nev.  75 54 

V.  Clifton,  113  Wis.  107 33 

V.  Cole,  51  N.  J.  L.  277 263 

V.  Columbus  Board,  &c.,  35  Ohio  St.  368 233 

V.  Compton,  28  Neb.  485 33,  45 

V.  Cones,  15  Neb.  444 41 

V.  Connort,  69  Wash.  361 16,  20,  198 

V.  Cooper,  35  Mo.  App.  532 82 

V.  Cross,  38  Kan.  696 117 

V.  Crumbaugh,  26  Tex.  Civ.  App.  521 91 

V.  Cunningham,  82  Wis.  39 90 

V.  Custer,  11  Ind.  210 66,  86 

V.  Daniel,  52  S.  C.  201 86 

V.  Deshler,  25  N.  J.  L.  177 33 

V.  Dierberger,  90  Mo.  369 109 

V.  Dilley,  95  Neb.  527 75 

V.  Directors,  &c.,  10  Ohio  St.  448 180 

V.  District  Board,  &c.,  76  Wis.  177 158,  159 

V.  District  Board,  &c.,  135  Wis.  619     101, 184, 185, 199,  214,  225 

V.  Donahay,  30  N.  J.  L.  404 54 

V.  Dovey,  19  Nev.  396 9 

V.  Duffy,  7  Nev.  342 202,  203,  209 

V.  Duggan,  15  R.  I.  403 202 

V.  Edwards,  151  Mo.  472 202 

V.  Fagan,  42  Conn.  32 94 

xlviii 


TABLE  OF  CASES 

[References  are  to  pages.] 

State  V.  Fairchild,  87  Kan.  781 235 

V.  Farrell,  83  Iowa  661 244 

V.  Fertig,  70  Iowa  272 79 

V.  Ferguson,  95  Neb.  63 184,  199,  243 

V.  Forkner,  70  Ind.  241 244 

V.  Freed,  10  Ohio  Cir.  Ct.  294 96 

V.  Gager,  26  Conn.  607 6 

V.  Gang,  10  N.  D.  331 33 

V.  Gordon,  231  Mo.  547 22 

V.  Graham,  60  Wis.  395 44 

V.  Gray,  93  Ind.  303 204 

V.  Grimes,  7  Wash.  270 22 

V.  Grimshaw,  1  S.  W.  (Mo.)  363 33 

V.  Grosvenor,  19  Neb.  494 139 

V.  Grubb,  85  Ind.  213 209 

V.  Hall,  74  N.  H.  61       17,  19,  210 

V.  Harmon,  31  Ohio  St.  250 234 

V.  Harper,  6  Ohio  St.  607 133 

V.  Hatch,  82  Conn.  122 98 

V.  Hawkins,  44  Ohio  St.  98 234 

V.  Haworth,  122  Ind.  462 231 

V.  Hehns,  136  Ind.  122 120 

V.  Henderson,  145  Mo.  329 30,  31 

V.  Hill,  152  Mo.  234       33 

V.  Independent,  &c.,  46  Iowa  425 31 

V.  Innes,  89  Kan.  168 235 

V.  Jackson,  168  Ind.  384 210 

V.  Jackson,  71  N.  H.  552 16,  17,  19 

V.  Joint  School  District,  65  Wis.  631 182 

V.  Julian,  93  Ind.  292 253 

V.  Kessler,  136  Mo.  App.  236 113 

V.  Kilroy,  86  Ind.  118 89 

V.  La  Grave,  23  Nev.  88 90 

V.  Lincoln  Medical  College,  81  Neb.  533 201 

V.  Lockett,  54  Mo.  App.  202 40,  46 

V.  Leonard,  3  Tenn.  Ch.  177 100,  105 

V.  Lynch,  8  Ohio  347 104 

V.  McBride,  31  Nev.  57 113 

V.  McCaffery,  69  Vt.  85 17,  19,  21 

V.  McCann,  21  Ohio  St.  198 202 

V.  McKee,  20  Oreg.  120 51 

V.  McLauglilin,  15  Kan.  228 53 

xlix 


TABLE  OF  CASES 

[References  are  to  pages.] 

State  y.  MacDonald,  25  Wash.  122 17 

V.  Marion  County  Com'rs,  85  Ind.  489 244 

V.  Matson,  97  Neb.  746 ...*..  90 

»  V.  Mayview,  &c.,  65  Mo.  587 31 

V.  Melcher,  87  Neb.  359 249 

V.  Mitchell,  50  Kan.  289 105 

V.  Mizner,  50  Iowa  145 168,  171,  173,  242 

V.  Moore,  74  Mo.  413 134 

V.  Moore,  45  Neb.  12 257 

V.  Mostad,  28  N.  D.  244 211 

V.  Murray,  28  Wis.  96 113 

V.  Nevin,  19  Nev.  162 134 

V.  O'Brien,  2  Root  (Conn.)  516 81 

V.  Ogan,  159  Ind.  119 24 

V.  Osborne,  24  Mo.  App.  309 .225 

V.  Palmer,  18  Neb.  644 34 

V.  Pendergrass,  19  N.  C.  (2  Dev.  &  B.  L.)  365  .        167,  168,  172 

V.  Peterman,  32  Ind.  App.  665 16,  20,  198 

V.  Powell,  67  Mo.  395 134 

V.  Powers,  38  Ohio  St.  54 22 

V.  Rauscher,  69  Tenn.  96 82 

V.  Richter,  23  Minn.  81 82 

V.  Ryan,  41  Utah  327 26 

V.  Scheve,  65  Neb.  853 159 

V.  School  District,  &c.,  42  Minn.  357        33 

V.  School  District,  &c.,  54  Minn.  213 26,  27 

V.  School  District,  &c.,  90  Mo.  395 34 

V.  School  District,  &c.,  15  Mont.  133 257 

V.  School  District,  &c.,  22  Neb.  48 100 

V.  School  District,  &c.,  42  Neb.  499 26 

V.  School  District,  10  Neb.  544 257 

V.  School  District,  13  Neb.  82 257 

V.  School  District,  13  Neb.  466 257 

V.  School  District,  16  Neb.  182 258 

V.  School  District,  31  Neb.  552 242 

V.  Shorrock,  55  Wash.  208 196,  198 

V.  Smith,  49  Neb.  755 164 

V.  Springfield,  &c.,  74  Mo.  21 233 

V.  Staley,  90  Kan.  624 44 

V.  State  Board,  &c.,  18  Nev.  173 230 

V.  Stewart,  90  Kan.  778 104 

V.  St.  Louis,  90  Mo.  19 105 

1 


TABLE  OF  CASES 

[References  are  to  pages.] 

State  V.  Stockwell,  23  N.  D.  70 90 

V.  Stovall,  103  N.  C.  416    ...    ■ 82 

V.  Superior  Court,  69  Wash.  189 48 

V.  Thayer,  74  Wis.  48 87 

V.  Tiedemann,  69  Mo.  515 12? 

V.  Treasurer,  &c.,  22  Ohio  St.  144 100 

V.  Trumf,  50  Wis.  103 113 

V.  Turney,  31  Ohio  Cir.  Ct.  222 20,  197,  198 

V.  University  of  Wisconsin,  54  Wis.  159 227 

V.  Vanderbilt,  116  Ind.  11 168 

V.  Vanosdal,  131  Ind.  388 89 

V.  Weber,  108  Ind.  31 213,  243 

V.  White,  82  Ind.  278 215 

V.  Whitford,  54  Wis.  150 86,  87 

V.  Wilcox,  17  Neb.  219 244 

V.  Wilhams,  27  Vt.  755 Ill 

.V.  Wilson,  65  Kan.  237 22 

V.  Wolfrom,  25  Wis.  468 263 

V.  Woolem,  39  Iowa  380 41 

V.  Wright,  17  Ohio  St.  32 33 

V.  York,  &c.,  13  Neb.  57 124 

V.  Zimmerman,  86  Minn.  353 195 

State  Bank,  &c.,  v.  Keinberger,  140  Wis.  517        121 

State  Board  of  Health  v.  Board,  &c.,  13  Cal.  App.  514  .     .     .     196 
State  Treasurer  v.  Somerville,  &c.,  28  N.  J.  L.  26      ....      79 

Stephens  v.  School  District,  &c.,  6  Oreg.  353 264 

Steinson  v.  Board,  &c.,  165  N.  Y.  431 162 

Stevens  v.  Fassett,  27  Me.  266 167,  178 

V.  Newcomb,  4  Denio  (N.  Y.)  437 26 

V.  School  District,  &c.,  30  Mich.  63 55 

Stevenson  v.  District  Township,  35  Iowa  462   ..    .       37,  59,  130 

V.  Hanyen,  1  Lack.  Leg.  N.  (Pa.)  99 158 

V.  School,  &c.,  87  111.  255 142,  148 

Stewart  v.  Johnson,  3  Harr.  (Del.)  335 273 

V.  Southard,  17  Ohio  St.  402 103 

V.  Thornton,  75  Va.  215 52 

St.  Joseph's  Church  v.  Assessors,  &c.,  12  R,  I.  19      ....    278 

St.  Louis,  &c.,  V.  People,  224  111.  155       262,  274 

V.  St.  Louis,  26  Mo.  468 277 

V.  Woods,  77  Mo.  197 69 

St.  Louis,  &c.,  R.  Co.  V.  People,  177  111.  78 268 

Stockdale  v.  Wayland,  &c.,  47  Mich.  226 49,  52 

u 


TABLE   OF  CASES 

[References  are  to  pages.] 

Stockwell  V.  State,  101  Ind.  1 253 

Stone  V.  Fritts,  169  Ind.  361 25,  143 

V.  School  District,  8  Cush.  (Mass.)  592 40,  45 

Stoneham  v.  Richardson,  23  Pick.  (Mass.)  62 36 

Storer  v.  Hobbs,  52  Me.  154 60 

Stoughton,  Third  School  District  in,  v.  Atherton,  12  Mete. 

(Mass.)  105 23,  37,  40,  51 

Stovall  V.  Johnson,  17  Ala.  14 14 

Streator  v.  Chrisman,  182  111.  215 71 

Stroud  V.  Stevens  Point,  37  Wis.  367 22,  24 

Stroup  V.  Beer,  25  Pa.  Co.  Ct.  1 143 

Stuart  V.  Board,  &c.,  161  Cal.  210 137 

V.  Kalamazoo,  30  Mich.  69 97,  233 

Stuessy  v.  Louisville,  156  Ky.  523 48 

StuU  V.  Reber,  215  Pa.  St.  156 195 

Sugar  V.  Monroe,  108  La.  677 77 

Sullivan  v.  Boston,  126  Mass.  540 55,  56,  57 

V.  School  District,  &c.,  39  Kan.  347 60,  129 

Sutton,  &c.,  V.  Cole,  3  Pick.  (Mass.)  232 245 

V.  Montpelier,  28  Ind.  App.  315 277 

Swartwood  v.  Walbridge,  57  Hun  (N.  Y.)  33    .     .     .     .      162,  164 
Sweitzer  v.  Fisher,  —  Iowa  — 201 

T 

Tanner  v.  Nelson,  25  Utah  226 237 

V.  Skinner,  11  Bush  (Ky.)  120 15 

V.  Stevenson,  138  Ky.  578 93 

Tape  V.  Hurley,  66  Cal.  473 216 

Taylor  v.  Matthews,  10  Ga.  App.  852 135 

V.  Petersburgh,  33  Ind.  App.  675 146 

V.  School  District,  &c.,  60  Mo.  App.  372 126,  154 

V.  Wayne,  &c.,  25  Iowa  447 128 

Teeple  v.  State,  171  Ind.  268 30,  53 

Templin  v.  District,  &c.,  36  Iowa  411 135 

Third  Ward  School  District  v.  City  Board,  &c.,  23  La.  An.  152    235 

Thomas  v.  Gibson,  11  Vt.  607 27,  55 

Tifft  V.  Buffalo,  82  N.  Y.  204 84 

Tingley  v.  Vaughan,  17  111.  App.  347 159 

Tippecanoe  County  v.  State,  92  Ind.  353 244 

Toledo  V.  Board  of  Education,  48  Ohio  St.  83 277 

Tompkins  v.  Tompkins'  Ex'rs,  18  N.  J.  Eq.  303 11 

lii 


TABLE  OF  CASES 
[References  are  to  pages.] 

Thompson  v.  Beaver,  63  111.  353 213 

V.  Board,  30  111.  99 134 

V.  Board,  &c.,  57  N.  J.  L.  628 viii,  86,  87 

V.  Dorsey,  4  Md.  Ch.  149 11 

V.  Gibbs,  97  Tenn.  489       160 

Toole  Bld'g  Ass'n  v.  Toole,  &c.,  42  Utah  596 65 

Thornburgh  v.  School  District,  &c.,  175  Mo.  12    .     ,     .      120,  258 

Torrey  v.  Millbury,  21  Pick.  (Mass.)  64 46 

Towle  V.  Brown,  110  Ind.  599 34,  252 

Town  of  Centreville  v.  Miller,  51  Iowa  712       82 

Townsend  v.  Trustees,  &c.,  41  N.  J.  L.  312      .     .     .     .      106,  148 

Trafton  v.  Alfred,  15  Me.  258 274 

Trainer  v.  Wolfe,  140  Pa.  St.  279 128 

Trammel  v.  Bradley,  37  Ark.  374 82 

Tripp  V.  School,  &c.,  50  Wis.  657 159 

True  V.  Melvin,  43  N.  H.  503 60,  62 

Trumbo  v.  People,  75  111.  561     . 26 

Trumbull  v.  White,  5  Hill  (N.  Y.)  46 264 

Trustees,  &c.,  v.  Braner,  71  111.  546 84 

V.  Brooks,  163  Ky.  200 28,  101 

V.  Garvey,  80  Ky.  159 261,  262 

V.  Jamison,  12  Ky.  L.  Rep.  719 73 

V.  Kulm,  261  111.  190 63 

V.  Lewis,  35  N.  J.  L.  377 49 

V.  Ormsby  County  Com'rs,  1  Nev.  334 244 

V.  Osborne,  9  Ind.  458 76 

V.  People,  87  111.  303 199 

V.  Rautenberg,  88  111.  219 247 

V.  Trenton,  30  N.  J.  Eq.  667 268,  277 

Tucker  v.  Aiken,  7  N.  H.  113 HI 

V.  McKay,  131  Mo.  App.  728 49,  64 

V.  Wentworth,  35  Me.  393 28 

Tufts  V.  State,  119  Ind.  232 116 

Turner  v.  Baker,  30  Ark.  186 149 

Turney  v.  Bridgeport,  55  Conn.  412 65,  129,  132 

Tyler  v.  Tualatin  Academy,  14  Oreg.  485 151 

U 

Underwood  v.  Wood,  93  Ky.  177 254 

Union,  &c.,  In  re,  12  Pa.  Co.  Ct.  547 107 

V.  First  Natl  Bank,  102  Ind.  464 97 

Hii 


TABLE   OF  CASES 

[References  are  to  pages.] 

Union,  &c.,  v.  Sterricker,  86  lU.  595 138,  139 

Union  County  ?;.  Robinson,  27  Ark.  116 202 

Union  School  District,  &c.,  v.  Crawfordsville,  &c.,  102  Ind.  473      96 

Upton  V.  County  of  Clinton,  52  Iowa  311 96 

U.  S.  V.  Buntin,  10  Fed.  730 202,  207 

V.  Dashiel,  4  Wall.  (U.  S.)  182 134 

V.  Prescott,  3  How.  (U.  S.)  587 133 

Utica  V.  Miller,  62  Ind.  230 53 


Van  Dolsen  v.  Board,  &c.,  162  N.  Y.  446 38 

Van  Dyke  v.  School  District,  &c.,  43  Wash.  235 164 

Vanvactor  v.  State,  113  Ind.  276 169,  170 

Vaughan  v.  School  District,  &c.,  27  Oreg.  57 37,  51 

Venable  v.  School,  &c.,  149  N.  C.  120 102 

Viemeister  v.  White,  179  N.  Y.  235 195 

W 

Wabash  R.  Co.  v.  People,  187  111.  289 262 

Wadsworth  v.  School  District,  &c.,  7  Wash.  485   ...     .     70,  71 

Wagner  v.  Royal,  36  Wash.  427 239 

Wait  V.  Ray,  67  N.  Y.  36 144 

Waldron  v.  Lee,  5  Pick.  (Mass.)  323   .     .     .     .     .     .     .      269,  270 

Walker,  In  re  ,179  Pa.  St.  24 38 

Walker  v.  Miner,  32  Vt.  769       94 

Wall  V.  Oyster,  36  D.  C.  App.  50 207 

Wallace  v.  School  District,  50  Neb.  171 160,  161 

V.  Young,  44  Ky.  155 81 

Wallis  V.  Smith,  29  Ark.  354 .     277 

Walters,  In  re,  84  Hun  (N.  Y.)  457 195 

Wapello  County  v.  Bingham,  10  Iowa  39 109 

Ward  V.  Flood,  48  Cal.  36 178,  192,  202,  206,  209 

V.  School  District,  10  Neb.  293 134 

Warren  v.  Stetson,  30  Me.  231 83 

Warren  County  v.  Patterson,  56  111.  Ill 83 

Washington,  &c..  In  re,  15  Pa.  Co.  Ct.  509  , 103 

Washington,  &c.,  v.  School,  &c.,  77  Md.  283 Ill 

Waterbury  v.  Harvey,  56  Vt.  556 148 

Water  Supply  Co.  v.  Albuquerque  City,  9  N.  M.  441  ..  .  24 
Waters  v.  Daines,  4  Vt.  601 272 

Uv 


TABLE   OF  CASES 

[References  are  to  pages.] 

Watkins  v.  Huff,  94  Tex.  631 87 

Watson  V.  Cambridge,  157  Mass.  561 191,  196 

Wayland  v.  Hughes,  43  Wash.  441 184,  221,  222 

Weatherly  v.  Chattanooga,  48  S.  W.  (Tenn.)  136      ....     114 

Webb  V.  Jackson,  141  Ga.  55 253 

Weeks  v.  Batchelder,  41  Vt.  317 30,  41 

Weir  Furnace  Co.  v.  Seymour,  99  Iowa  115 121 

Weitz  V.  Independent,  &c.,  78  Iowa  37    .     .     .     .     ^    .     .   65,  123 

Welch  V.  Brown,  30  Vt.  586 138 

Wells  V.  Board,  &c.,  78  Mich.  260       69,  70 

V.  People,  71  111.  532 141 

V.  School  District,  &c.,  41  Vt.  354 138 

West  V.  Wright,  98  Ind.  335       256 

West,  &c.,  V.  Merrills,  12  Conn.  437 263 

Western,  &c.,  v.  Board,  &c.,  39  Okla.  716 67 

Western  Pub.  House  v.  District,  &c.,  84  Iowa  101     ...     .     128 

V.  Murdick,  4  S.  D.  207 119 

Westland  Pub.  Co.  v.  Royal,  36  Wash.  399 229 

Wharton  v.  School  Directors,  42  Pa.  358 22 

Wheeler  v.  Alton,  &c.,  66  N.  H.  540 97 

Whipple  V.  Dow,  2  Mass.  415 11 

White  V.  Archibald,  8  Atl.  (Pa.)  443 112 

V.  Kellogg,  119  Ind.  320 165 

i;.  Wohlenberg,  113  Iowa  236 160 

Whitehead  v.  Pittman,  165  N.  C.  89 93,  100 

Whitmire  v.  State,  47  S.  W.  (Tex.)  293 33 

Whitmore  v.  Hogan,  22  Me.  564 35,  85 

Whitney  v.  Lowell,  151  Mass.  212 71 

V.  Stowe,  111  Mass.  368 41 

Whittaker  v.  Salem,  216  Mass.  483 255 

Wiest  V.  School  District,  &c.,  68  Oreg.  474 99 

Wilcox  Lumber  Co.  v.  School  District,  106  Minn.  208    ..     .      69 

Wilkins,  &c..  In  re,  70  Pa.  St.  108 30 

Willard  v.  Pike,  59  Vt.  202 43,  278 

Willard's  App.,  4  R.  I.  601 105 

Williams  v.  Board,  &c.,  81  Kan.  593 101 

V.  Board,  &c.,  79  Kan.  202 206 

V.  Board,  &c.,  45  W.  Va.  199 203 

V.  Bradford,  158  N.  C.  36 203 

V.  Directors,  &c.,  Wright  (Ohio)  579 207 

V.  Larkin,  3  Denio  (N.  Y.)  114 263 

V.  MacDougall,  39  Cal.  80 10 

Iv 


TABLE   OF  CASES 

[References  are  to  pages.] 

Williams  v.  Markland,  15  Ind.  App.  669 69 

V.  School  District,  21  Pick.  (Mass.)  75 51 

Willis  V.  Owen,  43  Tex.  41 273 

Wilson  V.  Board,  &c.,  233  111.  464 101,  222,  223 

V.  Board,  &c.,  12  S.  D.  535 37 

V.  Brown,  145  S.  W.  (Tex.)  639 26 

V.  E.  Bridgeport,  &c.,  36  Conn.  280 148 

V.  Kite,  21  Ky.  L.  Rep.  1199 254 

V.  School  District,  &c.,  40  Minn.  13 34 

V.  Waltersville,  &c.,  44  Conn.  157 47 

V.  Waltersville,  &c.,  46  Conn.  400 121 

V.  Wichita  Co.,  67  Tex.  647 134 

Wing  V.  Click,  56  Iowa  473 119 

Winona  v.  School  District,  &c.,  40  Minn.  13 34 

Withington  v.  Eveleth,  7  Pick.  (Mass.)  106 30 

Witter  V.  Mission,  &c.,  121  Cal.  350 277 

Wixon  V.  Newport,  13  R.  I.  454 56,  57 

Wolfe  V.  Bronson,  115  Mo.  271 236 

Wood  V.  Calaveras  County,  164  Cal.  398 25,  30 

V.  Cutter,  138  Mass.  149 116 

V.  Farmer,  69  Iowa  533 87 

V.  Independent,  &c.,  44  Iowa  27 57 

V.  Medfield,  123  Mass.  545 96,  161,  162 

V.  School  District,  &c.,  28  R.  I.  299 276 

Woodbury  v.  Knox,  74  Me.  462 144,  152 

Woodcock  V.  Bolster,  35  Vt.  632 274 

Woodside  v.  Wagg,  71  Me.  207       109 

Wooster  v.  Sunderland,  27  Cal.  App.  51 192 

Worthington  v.  Oak,  &c.,  100  Iowa  39 163 

Wright  V.  Kinney,  123  N.  C.  618 249 

V.  North  School  District,  53  Conn.  576     .....     .     41,  47 

V.  Rosenbloom,  52  N.  Y.  App.  Div.  579        96 

Wulff  V.  Wakefield,  221  Mass.  427 192 

Wysinger  v.  Cruikshank,  82  Cal.  588 205,  216 

Y 

Yale  V.  School  District,  59  Conn.  489 17,  180,  280 

Yeager  v.  Gibson  County,  95  Ind.  427 92 

Yorty  V.  Paine,  62  Wis.  154 109 

Yost  V.  Gaines,  78  Tenn.  576 252 

Youmans  v.  Board,  &c.,  13  Ohio  Cir.  Ct.  207 139 

Ivi 


TABLE  OF  CASES 

[References  are  to  pages.] 

Young  V.  Board,  &c.,  54  Minn.  385 128 

V.  King,  3  R.  I.  196 279 

Younger  v.  Judah,  111  Mo.  303 202 

Younts  V.  Union  County,  151  N.  C.  582 48 

Z 

Zucht  V.  San  Antonio,  &c.,  170  S.  W.  (Tex.)  840 199 


Ivii 


THE  LAW  OF  THE  PUBLIC  SCHOOL  SYSTEM 
OF  THE  UNITED  STATES 

CHAPTER  I 

GENERAL  PRINCIPLES 

§  1.  Duty  of  Educating. 

The  moral  duty  of  parents  to  educate  their  children 
as  well  as  possible  has  been  strongly  and  persuasively 
inculcated  by  writers  on  natural  law ;  ^  and  Solon  was 
so  deeply  impressed  with  the  force  of  the  obhgation, 
that  he  even  excused  the  children  of  Athens  from  main- 
taining their  parents,  if  they  had  neglected  to  train 
their  children  up  to  some  art  or  profession.^ 

The  education  of  children  in  a  manner  suitable  to 
their  station  and  calhng  is  a  branch  of  parental  duty,  of 
imperfect  obligation  generally  in  the  eye  of  the  muni- 
cipal law,  but  of  very  great  importance  to  the  welfare  of 
the  state.  Without  some  preparation  made  in  youth 
for  the  sequel  of  life,  children  of  all  conditions  would 
probably  become  idle  and  vicious  when  they  grow  up, 

^  Puffendorf,  b.  4,  Ch.  11,  sec.  5;   Paley's  Moral  Philosophy, 
224,  225;  2  Kent's  Com.,  195,  196. 
2  Plutarch's  Life  of  Solou. 

1 


§  1]  GENERAL  PRINCIPLES  [Ch.  I 

either  for  want  of  good  instruction  and  habits,  and  the 
means  of  subsistence,  or  from  want  of  rational  and  use- 
ful occupation.  A  parent  who  sends  his  child  into  the 
world  uneducated,  and  without  skill  in  any  art  or 
science,  does  a  great  injury  to  mankind,  as  well  as  to 
his  own  family;  for  he  defrauds  the  community  of  a 
useful  citizen,  and  bequeaths  to  it  a  nuisance. 

The  duty  of  educating  children  was  a  fundamental 
one  with  the  early  settlers  of  New  England,  and  Massa- 
chusetts was  the  first  of  the  colonies  to  establish  legal 
provisions  for  the  fulfilment  of  this  obligation,  the  orig- 
inal act  having  been  passed  in  1647.^     In  the  develop- 

^  See  Shurtleff's  Records  of  Massachusetts  Bay,  V.  II.,  203; 
Winthrop's  History  of  New  England,  V.  II.,  215;  Jenkins  v.  An- 
dover,  103  Mass.  94. 

In  Massachusetts  by  the  statute  of  1789,  Chapter  19,  a  grammar 
school  was  required  to  be  maintained  by  every  town  having  two 
hundred  families  or  householders,  for  the  use  and  benefit  of  all  the 
inhabitants  of  the  town.  And  so  zealously  was  the  right  to  educa- 
tion guarded  that  at  the  Circuit  Court  of  Common  Pleas,  April 
term,  1817,  the  following  indictment  was  returned  by  the  grand 
jury : 

"The  jurors,  &c.,  on  their  oath  present,  that  the  town  of  Dedham 
in  said  county  of  Norfolk,  at  said  Dedham,  on  the  26th  day  of  April, 
1816,  and  from  that  time,  to  the  26th  day  of  April,  1817,  did  contain, 
and  still  doth  contain  two  hundred  families  and  upwards ;  and  that 
said  town  of  Dedham,  at  said  Dedham,  did,  during  all  the  time  from 
said  26th  of  April,  1816,  to  said  26th  of  April,  1817,  neglect,  and  still 
does  neglect  the  procuring  and  supporting  of  a  grammar  school- 
master, of  good  morals,  well  instructed  in  the  Latin,  Greek,  and 
English  languages,  to  instruct  children  and  youth  in  said  languages ; 
which  is  in  subversion  of  that  diffusion  of  knowledge,  and  in  hindrance 
of  that  promotion  of  education,  which  the  principles  of  a  free  govern- 
ment require,  and  which  the  constitution  of  the  commonwealth 
enjoins ;  against  the  peace  and  dignity  of  said  commonwealth,  and 
the  form  of  the  statute  in  such  case  made  and  provided,"  Com,  v. 
Dedham,  16  Mass,  141. 

2 


Ch.  I]  CONSTITUTIONAL  PROVISIONS  [§  3 

merit  of  this  plan  of  public  education  we  find  at  the 
time  of  the  Revolution,  two  Grammar  Schools  and 
three  Writing  Schools  in  the  City  of  Boston ;  ^  and 
thus  was  formed  the  nucleus  of  the  public  school  system 
in  the  United  States.  In  England  there  was  no  ade- 
quate provision  for  pubhc  elementary  education  until 
the  Elementary  Education  Act  of  1870,  which  made 
provision  for  such  a  system  in  England  and  Wales. 

§  2.   Power  to  Establish  Public  Schools. 

The  power  of  the  several  States  to  establish  and 
maintain  systems  of  common  schools,  to  raise  money 
for  that  purpose  by  taxation,  and  to  govern,  control, 
and  regulate  such  schools  when  established,  is  a  power 
not  delegated  to  the  Federal  government,  nor  prohibited 
by  its  constitution  to  the  several  States,  therefore  such 
power  is  reserved  to  the  States  respectively  or  to  the 
people.^  Consequently  the  pubhc  school  system  of  a 
State  usually  originates  under  the  constitution  of  that 
particular  State.^ 

§  3.   Constitutional  Provisions. 

Many  of  the  States  have  provided  for  the  main- 
tenance of  public  schools,  in  constitutional  provisions.^ 

^  Snow's  History  of  Boston,  350 ;  Amer.  Jour,  of  Educ,  1826,  210. 
The  earliest  trace  of  our  system  of  free  schools  is  to  be  found  on  the 
Boston  records  under  the  date  of  April  13,  1635,  where  it  is  stated  to 
have  been  "agreed  upon  that  our  brother,  Philemon  Purraont,  shall 
be  intreated  to  become  schoolmaster,  for  the  teaching  and  nurturing 
of  children  with  us."     Snow's  History  of  Boston,  sup7'a  cit. 

2  Marshall  v.  Donovan,  10  Bush  (Ky.)  681. 

3  Cory  V.  Carter,  48  Ind.  327. 

*  Ala.,  Art.  4,  sec.  33;  Ark.,  Art.  14;  Cal.,  Art.  9,  sec.  5;  Colo., 
Art.  9,  sec.  2 ;   Del.,  Art.  10,  sec.  1 ;   Conn.,  Art.  8,  sec.  2 ;   Fla., 

3 


§  3]  GENERAL  PRINCIPLES  [Ch.  I 

Some  of  the  State  constitutions  declare  that  the  people 
have  a  right  to  education,  which  it  is  the  duty  of  the 
State  to  guard  and  maintain/  "  without  distinction  of 
race,  color,^  caste  ^  or  sex.'* "  Under  a  State  consti- 
tution requiring  the  common  school  system  to  be  uni- 
formly open  to  all,  such  imiformity  exists  when  all 
schools  of  the  same  grade  have  the  same  system  of 
studies  and  discipline,  and  require  uniform  qualifica- 
tions for  admission.^ 

In  Massachusetts,  the  constitution  provides :  ^ 
"  Wisdom  and  knowledge,  as  well  as  virtue,  diffused 
generally  among  the  body  of  the  people,  being  neces- 
sary for  the  preservation  of  their  rights  and  liberties ; 

Art.  12,  sec.  1 ;  Ga.,  Art.  8,  sec.  1 ;  Ida.,  Art.  9,  sec.  1 ;  111.,  Art.  8 
sec.  1 ;  Ind.  Art.  8,  sec.  1 ;  la.,  Art.  9,  div.  1,  sec.  12 ;  Kan.,  Art.  6 
sec.  2 ;  Ky.,  Art.  11,  sec.  1 ;  La.,  Acts  1880,  sec.  224 ;  Me.,  Art.  8 
sec.  1 ;  Md.,  Art.  8 ;  Mass.,  Part  2,  Ch.  5,  sec.  2 ;  Mich.,  Art.  13 
sec.  4 ;  Minn.  Art.  8,  sec.  2 ;  Miss.,  Art.  8,  sec.  1,  5-8 ;  Mo.,  Art.  11 
sec.  1 ;  Mont.,  Art.  11,  sec.  1 ;  Neb.,  Art.  8,  sec.  6 ;  Nev.,  Art.  11 
sec.  2 ;  N.  H.,  part  2,  Art.  83 ;  N.  J.,  Art.  4,  sec.  7 ;  N.  Y.,  Art.  9 
sec.  1 ;  N.  C,  Art.  1,  sec.  27,  Art.  9,  sec.  2 ;  N.  D.  147 ;  Ohio,  Art.  1 
sec.  7,  Art.  6,  sec.  1  and  2 ;  Okla.,  Art.  13,  sec.  1 ;  Ore.,  Art.  8,  sec.  3 
Pa.,  Art.  10,  sec.  1 ;  R.  I.,  Art.  12,  sec.  1,  2,  4 ;  S.  C,  Art.  10,  sec.  3 
11;  S.  D.,  Art.  8,  sec.  1,  Art.  22,  sec.  1;  Tenn.,  Art.  11,  sec.  12 
Tex.,  Art.  7,  sec.  1 ;  Utah,  Art.  3,  sec.  4,  Art.  10,  sec.  1 ;  Vt.,  Ch.  2 
Art.  41 ;  Va.,  Art.  8,  sec.  3,  7,  8 ;  Wash.,  Art.  9,  sec.  1,  Art.  26,  sec.  1 
Art.  27,  sec.  1 ;  W.  Va.,  Art.  12,  sec.  1 ;  Wis.,  Art.  10,  sec.  3 ;  Wyo. 
Art.  7,  sec.  1.  The  provisions  in  constitutions  of  Montana,  North 
Dakota,  South  Dakota,  Utah,  Washington,  and  Wyoming  are  irre- 
vocable without  the  consent  of  the  United  States ;  see  U.  S.  Statutes 
of  1889,  Ch.  180. 

1  N.  C,  Art.  1,  sec.  27 ;  Wash.,  Art.  9,  sec.  1 ;  Wyo.,  Art.  1, 
BBC  23. 

2  Colo.,  Art.  9,  sec.  8 ;  Ida.,  Art.  9,  sec.  6 ;  Wash.,  Art.  9,  sec.  1 ; 
Wyo.,  Art.  7,  sec.  10.  ^  Wash.,  Art.  9,  sec.  1. 

*  Ida.,  Art.  9,  sec.  6;  Wyo.,  Art.  7,  sec.  10. 

6  Cory  V.  Carter,  48  Ind.  327.  «  Ch.  5,  sec.  2. 

4 


Ch.  I]  CONSTITUTIONAL  PROVISIONS  [§  3 

and  as  these  depend  on  spreading  the  opportunities  and 
advantages  of  education  in  the  various  parts  of  the 
country,  and  among  the  different  orders  of  the  people, 
it  shall  be  the  duty  of  legislatures  and  magistrates,  in  all 
future  periods  of  this  commonwealth,  to  cherish  the 
interests  of  Hterature  and  the  sciences,  and  all  semi- 
naries of  them ;  especially  the  university  at  Cambridge, 
pubhc  schools  and  grammar  schools  in  the  towns ;  to 
encourage  private  societies  and  pubhc  institutions, 
rewards  and  immunities,  for  the  promotion  of  agri- 
culture, arts,  sciences,  commerce,  trades,  manufactures, 
and  a  natural  history  of  the  country ;  to  countenance 
and  inculcate  the  principles  of  humanity  and  general 
benevolence,  pubhc  and  private  charity,  industry  and 
frugality,  honesty  and  punctuality  in  their  dealings, 
sincerity,  good  humor,  and  all  social  affections  and 
generous  sentiments,  among  the  people." 

The  Constitution  of  the  United  States  does  not 
mention  the  right  or  duty  of  education,  and  it  there- 
fore would  seem  beyond  the  power  of  the  Federal 
government  to  prescribe,  limit  or  regulate  the  common 
schools  of  the  several  States.^  And  although  a  treaty 
to  that  effect  would  be  vahd  in  favor  of  a  foreign  power, 
it  would  not  be  binding  upon  the  States,  except  as  a 
consequence  of  the  war  power. ^ 

In  New  York,  there  is  no  constitutional  right  to 
education,  the  right  being  founded  entirely  upon 
legislation,  and  as  such  is  subject  to  such  limitations 

1  Marshall  v.  Donovan,  10  Bush  (Ky.)  681 ;  Griswold  v.  Hepburn, 
63  Ky.  20 ;  Tucker's  Limitations  on  the  Treaty-Making  Power,  21, 
380.  2  Stimson's  Const,  b.  Ill,  sec.  50. 

5 


§  4]  GENERAL  PRINCIPLES  [Ch.  I 

as  the  legislature  in  its  wisdom,  may  from  time  to  time 
see  fit  to  make.^ 

§  4.  What  is  a  School? 

A  school  is  an  institution  of  learning  of  a  lower 
grade  than  a  college  or  a  university.  It  is  a  place  of 
primary  instruction.^  The  terms  "  pubhc  schools " 
and  "  common  schools  "  are  synonymous,^  but  such 
terminology  is  not  limited  to  a  school  of  the  lowest 
grade.  It  includes  all  schools  from  the  primary  to 
the  high  schools,  but  it  does  not  include  one  founded 
by  a  charitable  bequest  which  vests  the  order 
and  superintendence  of  it  in  a  board  of  trustees,^  or 
those  devoted  exclusively  to  teaching  advanced  pu- 
pils in  the  classics,  and  in  all  of  the  higher  branches 
of  study  usually  included  in  the  curriculum  of  the 
colleges.^ 

To  constitute  a  school  there  must  be  a  teacher  and 
pupils.  And  so  it  has  been  held  that  a  meeting  of 
persons  assembled  for  the  purpose  of  singing  together 
for  their  common  improvement  in  the  art  of  singing, 
but  without  a  teacher,  is  not  a  school  within  the  sta- 
tutory meaning,^  but  that  a  singing  school,  with  a 
teacher  and  pupils  is  within  the  meaning  of  the  statute.' 

1  Dallas  V.  Fosdick,  40  How.  Pr.  (N.  Y.)  240. 

2  Bouv.  L.  Diet. 

3  Roach  V.  St.  Louis,  &c.,  77  Mo.  484 ;  People  v.  Board,  &c., 
13  Barb.  (N.  Y.)  410. 

4  Jenkins  v.  Andover,  103  Mass.  94,  97. 
s  Powell  V.  Board,  &c.,  97  111.  378. 

«  State  V.  Gager,  26  Conn.  607,  28  Conn.  232. 
7  Ibid. 

6 


Ch.  I]  WHAT  IS  A  PUBLIC  SCHOOL?  [§  5 

§  5.   What  is  a  Public  School? 

A  public  or  common  school  has  been  defined  as  one 
that  is  common  and  free  to  all  children  of  proper  age 
and  capacity,  and  which  is  subject  to,  and  under  the 
control  of,  the  qualified  voters  of  a  school  district.^ 
It  has  been  held,  however,  that  it  is  not  inconsistent 
with  a  free  public  school  system  that  school  boards 
may  fix  a  reasonable  incidental  fee  for  heating  and 
lighting  as  a  condition  precedent  to  a  pupil  entering  a 
public  school.^ 

The  characteristic  features  of  public  schools  in  the 
United  States  are :  They  are  supported  by  general 
taxation,  are  open  to  all  free  of  tuition  expense,  and 
are  under  the  immediate  control  and  superintendence 
of  agents  appointed  by  the  voters  of  each  town  and 
city,^  or  district. 

In  point  of  taxation  the  term  "  public  schools  "  can- 
not be  confined  to  those  supported  exclusively  by 
municipal  taxation.  In  Massachusetts,  town  schools 
have  been  for  many  years  in  part  supported  by  legis- 
lative grants  out  of  the  school  fund  of  the  common- 
wealth, as  recognized  by  the  eighteenth  article  of 
amendments  to  the  constitution.  Nor  can  the  term 
be  limited  to  schools  supported  wholly  by  the  public, 
for  the  original  statute  of  1647  provided  for  the  sup- 
port of  the  schoolmaster,  at  the  discretion  of  the 
selectmen,  by  a  contribution  from  the  parents  of  the 

1  School  District,  &c.,  v.  Bryan,  51  Wash.  498,  99  Pac.  28. 

2  Roberson  v.  Oliver,  189  Ala.,  82,  66  So.,  645. 

^  Merrick  v.  Amherst,  12  Allen  (Mass.)  508 ;  Collins  v.  Henderson, 
11  Bush  (Ky.)  74. 

7 


§  5]  GENERAL  PRINCIPLES  [Ch.  I 

scholars,  or  the  masters  of  such  as  were  under  appren- 
ticeship, instead  of  by  a  uniform  tax  upon  all  the 
inhabitants  of  the  towns;  and  they  may,  in  later 
times,  derive  support  from  voluntary  contributions. 
These  are  the  schools  to  which  the  eighteenth  article 
of  amendments  to  the  constitution  of  Massachusetts 
applies;  schools  which  towns  are  required  to  main- 
tain, or  authorized  to  maintain,  though  not  required 
to  do  so,  as  a  part  of  our  system  of  conamon  education, 
and  which  are  open  and  free  to  all  the  children  and 
youth  of  the  town  in  which  they  are  situated,  who  are 
of  proper  age  or  qualifications  to  attend  them. 

This  class  of  schools  does  not  include  private  schools 
which  are  supported  and  managed  by  individuals ; 
nor  colleges  or  academies  organized  and  maintained 
under  special  charters  for  promoting  the  higher  branches 
of  learning,  and  not  especially  intended  for,  nor  limited 
to,  the  inhabitants  of  a  particular  locality.^ 

A  common  school  is  one  that  begins  with  the  rudi- 
mental  elements  of  an  education,  as  contradistinguished 
from  academies  and  universities  that  begin  with  the 
higher  branches  of  education.^  And  the  term  "  public 
schools  "  as  generally  used  is  not  limited  to  schools  of 
the  lowest  grade  but  may  include  high  schools  as  well.^ 
A  normal  school  is  also,  in  an  enlarged  sense,  a  public 
school.^ 

The  fact  that  a  tuition  fee  is  charged  will  not  ipso 

^  Jenkins  v.  Andover,  103  Mass.  97. 
2  Powell  V.  Board,  &c.,  97  111.  378. 
^  Jenkins  v.  Andover,  103  Mass.  97. 
4  People  V.  Crissey,  45  Hun  (N.  Y.)  19. 

8 


Ch.  I]  WHAT  IS  EDUCATION?  [§  6 

facto  take  a  school  out  of  its  class  as  a  public  school.^ 
But  schools  controlled  by  an  incorporated  board  of 
trustees  are  not  public  schools ;  ^  nor  is  a  school  kept 
by  a  society,^  or  open  only  to  poor  orphan  children, 
although  controlled  by  a  city.* 

Even  though  the  land  on  which  a  schoolhouse 
stands  is  owned  by  the  Catholic  Church,  and  is  located 
in  a  district  where  the  people  are  of  that  faith,  and 
which  faith  is  taught  in  the  school  without  objection, 
and  the  Church  funds  are  contributed  to  the  salary 
of  the  teachers,  if  the  school  receives  its  share  of  the 
school  fund,  district  meetings  are  annually  held,  teach- 
ers hired  and  paid  by  the  school  board,  and  the  busi- 
ness of  the  school  conducted  in  the  usual  manner  of 
school  districts,  such  school  is  a  district  school  and  not 
a   parochial   school.^ 

§  6.  What  is  Education? 

Education  is  a  broad  and  comprehensive  term.  It 
has  been  defined  as  the  process  of  developing  and  train- 
ing the  powers  and  capabilities  of  human  beings.  It 
is  the  bringing  up,  physically  or  mentally,  of  a  child, 
or  the  preparation  of  a  person,  by  some  due  course  of 
training,  for  a  professional  or  business  life,  or  other 

1  Blake  v.  Mayor,  &c.,  19  Q.  B.  D.  79 ;  Le  Couteulx  v.  Buffalo, 
33  N.  Y.  333. 

2  Hall's  Free  School  v.  Home,  80  Va.  470 ;  Elsberry  v.  Seay, 
83  Ala.  614,  3  So.  804. 

3  People  V.  Board,  &c.,  13  Barb.  (N.  Y.)  400. 

4  In  re  Malone's  Estate,  21  S.  C.  435 ;  State  v.  Dovey,  19  Nev. 
396,  12  Pac.  910. 

5  Richter  v.  Cordes,  100  Mich.  278,  58  N.  W.  1110. 

9 


§  7]  GENERAL  PRINCIPLES  [Ch.  I 

calling.^  It  may  be  directed  particularly  to  either 
the  mental,  moral,  or  physical  powers  and  faculties, 
but  in  its  broadest  and  best  sense  it  refers  to  them  all.^ 
It  is  not  necessary  that  an  "  English  "  education  be 
limited  to  the  study  of  the  English  language.  An 
education  acquired  through  the  medium  of  the  Eng- 
lish language,  even  though  embracing  Latin  and  Ger- 
man, is  an  English  education.^  And  a  "  good  common 
school  education  "  includes  a  high  school  education.'* 

§  7.   Father's  Duty  to  Educate. 

It  is  the  common-law  rule  that  education  is  a  duty 
owed  by  the  parent  to  the  child.  But,  while  the  duty 
rested  upon  the  parent  to  educate  his  child,  the  law 
would  not  attempt  to  force  him  to  discharge  this  duty, 
and  the  child,  so  far  as  education  was  concerned,  was 
completely  at  the  mercy  of  the  parent.  Therefore, 
at  common  law  the  child  had  no  right  to  demand  an 
education  at  the  hands  of  the  parent,  and  this  is  the 
state  of  the  law  generally  in  the  United  States  unless 
there  is  a  State  law,  either  constitutional  or  statutory, 
which  is  held  to  alter  or  abolish  it. 

Where  under  a  State  law  a  father  is  bound  to  edu- 

^  Clavering  v.  Ellison,  7  H.  L.  Cas.  713 ;  State  ex  rel.  Henderson 
V.  Lesueur,  99  Mo.  552,  13  S.  W.  237. 

2  Williams  v.  MacDougall,  39  Cal.  80 ;  Mount  Hermon  Boys 
School  V.  GiU,  145  Mass.  139,  146,  13  N.  E.  354 ;  Peck  v.  Claflin, 
105  Mass.  420 ;  Merrill  v.  Emery,  10  Pick.  (Mass.)  507 ;  Ruohs  v. 
Backer,  6  Heisk.  (Tenn.)  395;  Cook  v.  State,  90  Tenn.  407,  16  S. 
W.  471.  For  essays  on  legal  education  see  Jones'  Index  to  Legal 
Periodicals. 

3  Board,  &c.,  v.  Welch,  51  Kan.  806,  33  Pac.  654. 

4  Cook  V.  Board,  &c.,  266  111.  164,  107  N.  E.  327. 

10 


Ch.  I]  MOTHER'S  DUTY  TO  EDUCATE  [§  8 

cate  his  children  he  must  do  so  out  of  his  own  estate, 
even  if  the  children  have  ample  separate  resources/ 
or  even  if  his  child  has  a  separate  estate  of  which  he 
is  guardian  his  duty  is,  nevertheless,  to  educate  the 
child  out  of  his  own  estate.^  A  father  who  is  bound 
to  educate  his  minor  child  by  reason  of  a  State  law 
is  bound  to  pay  a  reasonable  sum  to  another  person 
who  does  it  for  him  with  his  knowledge  and  consent.^ 
Usually  a  person  who  stands  in  loco  parentis  is  bound 
to  educate  a  child  to  whom  he  stands  in  such  relation.^ 
And  while  a  stepfather,  merely  by  virtue  of  the  mar- 
riage does  not  acquire  such  relation,  he  does  acquire 
it  if  he  assumes  the  parental  relation  and  holds  the 
children  out  to  the  world  as  members  of  his  own  family.^ 

§  8.   Mother's  Duty  to  Educate. 

While  the  obligation  is  upon  the  father  to  educate 
the  child,  and  does  not,  in  the  lifetime  of  the  father, 
in  any  manner  rest  upon  the  mother,  still  there  is  an 

1  Englehardt  v.  Yung's  Heirs,  76  Ala.  534 ;  Fuller  v.  Fuller, 
23  Fla.  236,  2  So.  426 ;  Hines  v.  MuUins,  25  Ga.  696 ;  Bedford  v. 
Bedford,  136  111.  354,  26  N.  E.  662;  Addison  v.  Bowie,  2  Bland 
(Md.)  606;  Whipple  v.  Dow,  2  Mass.  415;  Dawes  v.  Howard, 
4  Mass.  97 ;  Pearce  v.  Olney,  5  R.  I.  269 ;  Presley  v.  Davis,  7  Rich. 
Eq.  (S.  C.)  105 ;  Linskie  v.  Kerr,  34  S.  W.  (Tex.)  765 ;  Contra:  In  re 
Marx,  5  Abb.  N.  C.  (N.  Y.)  224. 

^  Kinsey  v.  State,  98  Ind.  351 ;  Tompkins  v.  Tompkins'  Ex'rs, 
18  N.  J.  Eq.  303 ;  Buckley's  Adm'r  v.  Howard,  35  Tex.  565. 

3  Thompson  v.  Dorsey,  4  Md.  Ch.  149. 

"  Schrimf  v.  Settegast,  36  Tex.  296. 

5  Mowbry  v.  Mowbry,  64  111.  383 ;  Mulhern  v.  McDavitt,  16 
Gray  (Mass.)  404 ;  In  re  Besondy,  32  Minn.  385,  20  N.  W.  366 ; 
Eickhoff  V.  Sedaha,  &c.,  106  Mo.  App.  541,  80  S.  W.  966 ;  Beard's 
Estate,  1  Pa.  Co.  Ct.  283. 

11 


§  8]  GENERAL  PRINCIPLES  [Ch.  I 

obligation  growing  out  of  the  relation  of  husband  and 
wife,  and  parent  and  child,  resting  upon  the  wife  and 
mother,  demanding  her  co-operation  with  the  hus- 
band in  everything  that  is  necessary  for  the  welfare 
of  the  child.  If  the  father  is,  by  a  good  reason,  required 
to  abstain  from  conduct  which  would  injure,  and 
possibly  destroy,  the  entire  benefits  of  the  public 
school  system,  the  mother,  for  like  reasons,  must  be 
required  to  desist,  and  her  conduct  may  be  a  good 
reason  for  causing  both  the  child  and  the  father  to 
lose  the  benefits  of  the  school  fund.^ 

In  a  case  where  the  child  is  free  from  fault,  and  the 
father  is  obedient  to  the  law,  it  does  look  extremely 
hard  that  the  willful  misconduct  of  the  mother  should 
thus  bring  distress  upon  two  innocent  persons;  but 
it  is  better  that  they  should  suffer,  than  that  an  institu- 
tion in  operation  for  the  public  good  should  be  entirely 
subverted  and  destroyed,  as  would  certainly  be  the 
result  if  the  mother  of  every  child  in  attendance  on 
the  schools  were  permitted  whenever  disposed  to  enter 
the  schoolroom  and  upbraid  the  teacher  in  the  presence 
of  the  pupils,  or  do  other  acts  subversive  of  discipline 
and  good  order.^ 

Although  the  mother,  during  the  time  the  father 
holds  the  position  as  head  of  the  family,  must  refrain 
from  such  acts  as  tend  to  destroy  discipline  in  the 
public  schools,  she  does  not  occupy  such  a  position 
of  custody  and  control  of  the  child  that  an  attendance 
order  made  on  the  father  of  a  child  can  on  the  death 

1  Board,  &c.,  v.  Purse,  101  Ga.  422,  28  S.  E.  896. 

2  Ibid. 

12 


Ch.  I]  CHILD  WAS  WITHOUT  REMEDY  [§  10 

of  the  father  be  enforced  against  the  mother,^  although 
a  mother  who  has  the  care  and  custody  of  a  child  may 
be  convicted  for  neglecting  to  cause  the  child  to  attend 
school.^  A  widowed  mother  is  not  chargeable,  how- 
ever, for  the  education  of  her  child  where  ample  pro- 
vision is  otherwise  made  for  its  support.^ 

§  9.   Pecuniary  Ability  of  Parent. 

At  common  law  the  child's  right  to  an  education 
was  dependent  not  only  upon  the  will  but  upon  the 
pecuniary  ability  of  the  parent.  Even  where  elaborate 
public  school  systems  have  been  established,  thereby 
removing  dependency  upon  the  pecuniary  ability  of 
the  parent,  the  right  of  a  child  to  an  education  is  still 
dependent  on  the  will  of  the  parent  unless  the  rule  of 
the  common  law  has  been  abrogated  either  by  con- 
stitutional or  statutory  enactment.  If  the  parent 
is  willing  but  has  not  the  means  to  carry  out  this  will, 
the  child  must  go  without  an  education. 

§  10.   Child  was  Without  Remedy. 

The  child  was  completely  at  the  mercy  of  the  parent 
in  his  attendance  at  school,  in  that  he  was  remediless, 
for  while  the  common  law  recognized  the  duty  of 
educating  a  child  as  one  of  great  importance,  there 
was  no  remedy  whatever  provided  for  the  child  in 
case  this  duty  was  not  discharged  by  the  parent. 

1  Hance  v.  Fairhurst,  47  J.  P.  53,  51  L.  J.  M.  C.  139. 

^  London  School  Board  v.  Jackson,  7  Q.  B.  D.  502 ;  Mowbry  v. 
Mowbry,  64  111.  383 ;  Mulhern  v.  McDavitt,  16  Gray  (Mass.)  404. 

^  Mowbry  v.  Mowbry,  64  111.,  383 ;  Englehardt  v.  Yung's  Heirs, 
76  Ala.  534 ;  In  re  Besondy,  32  Minn.  385,  20  N.  W.  366 ;  Osborn  v. 
AUen,  26  N.  J.  L.  388. 

13 


§  11]  GENERAL  PRINCIPLES  [Ch.  I 

The  child,  at  the  will  of  the  parent,  could  be  allowed 
to  grow  up  in  ignorance  and  become  more  than  a  use- 
less member  of  society,  and  for  this  great  wrong, 
brought  about  by  the  neglect  of  his  parents,  the  com- 
mon law  provided  no  remedy.  Not  only  was  no  remedy 
given  to  the  child,  but  no  punishment  was  inflicted 
upon  the  parent  for  the  failure  to  educate.  In  attempt- 
ing to  give  a  reason  for  this  defect  in  the  common  law. 
Sir  Wilham  Blackstone  says :  ''  Perhaps  they  thought 
it  punishment  enough  to  leave  the  parent,  who  neglects 
the  instruction  of  his  family,  to  labor  under  those 
griefs  and  inconveniences  which  his  family,  so  unin- 
structed,  will  be  sure  to  bring  upon  him."  ^ 

§  11.   Parent  may  Direct  Studies. 

All  parents  and  guardians  being  under  the  responsi- 
bihty  of  preparing  children  intrusted  to  their  care  and 
nurture  for  the  discharge  of  their  duties  in  after  life, 
law-givers  in  all  free  countries,  and,  with  few  excep- 
tions, in  despotic  governments  have  deemed  it  wise 
to  leave  the  education  and  nurture  of  the  children 
to  the  reasonable  direction  of  the  parent  or  guardian. 
This  is,  and  has  ever  been,  the  spirit  of  our  free  in- 
stitutions. The  State  has  provided  the  means,  and 
brought  them  within  the  reach  of  all,  to  acquire  the 
benefits  of  a  common  school  education,  but  leaves  it 
to  parents  and  guardians  reasonably  to  determine  the 
extent  to  which  they  will  render  it  available  to  the 
children  under  their  charge. ^ 

1 1  Bl.  Com.  781. 

2  Rulison  V.  Post,  79  111.  567 ;  Stovall  v.  Johnson,  17  Ala.  14 ; 
Dawson  v.  Dawson,  12  Iowa  512 ;   Porter  v.  Powell,  79  Iowa  151, 

14 


Ch.  I]  COMPULSORY  EDUCATION  [§  13 

§  12.   Non-Compulsory  System. 

The  law  providing  for  a  non-compulsory  public 
school  system  was  not  intended  to  create  any  new 
right  in  or  give  any  new  remedy  to  a  child,  it  being 
settled  that  the  presence  of  the  child  in  school  depends 
absolutely  upon  the  consent  and  will  of  the  parent ; 
and  school  authorities  are  justified  in  dealing  with 
the  child  in  the  hght  of  this  fact.  Under  such  system 
it  is  simply  the  purpose  of  the  State  to  aid  the  parent 
in  discharging  a  duty  by  furnishing  a  fund  to  pay  the 
expenses  incident  to  discharging  such  duty. 

Under  a  common  school  system  which  does  not  make 
education  compulsory,  the  entire  law,  from  the  con- 
stitutional provision  to  the  vaUd  rule  of  the  local  school 
board,  is  that  the  right,  to  attend  school  is  not  inher- 
ent in  the  child,  but  that  it  is  the  purpose  of  the  law 
simply  to  provide  a  place  where  parents  may  discharge 
the  obUgation  which  they  owe  to  their  children  to  give 
them  an  education. 

§  13.   Compulsory  Education. 

To  discharge  more  thoroughly  the  obhgation  of  the 
State  to  educate  its  citizens,  statutes  to  enforce  edu- 
cation have  been  enacted  in  every  State  except  Georgia 
and  Mississippi.  It  is  competent  for  the  legislature 
to  compel  parents  to  perform  the  natural  duty  of 
education  owed  to  their  children,  and  therefore  com- 

44  N.  W.  295;  Tanner  v.  Skinner,  11  Bush  (Ky.)  120;  Gates  v. 
Renfroe,  7  La.  An.  569 ;  Gilley  v.  Gilley,  79  Me.  292,  9  Atl.  623 ; 
Hillsborough  v.  Deering,  4  N.  H.  86;  Bull's  Estate,  1  Leg.  Op. 
(Pa.)  125.    See  also,  Gh.  8,  sec.  106,  w/ra. 

15 


§  13]  GENERAL  PRINCIPLES  [Ch.  I 

pulsory  attendance  laws  are  not  necessarily  unconstitu- 
tional as  an  invasion  of  a  parent's  rights  and  domin- 
ion.^ But  private  tuition  at  home  may  be  a  sufficient 
substitute  for  attendance  at  school  under  such  com- 
pulsory system.^ 

The  great  object  of  statutes  enforcing  education 
is  that  all  children  shall  be  educated,  —  not  that  they 
shall  be  educated  in  any  particular  way.  To  this  end 
pubhc  schools  are  estabhshed,  so  that  all  children 
may  be  sent  to  them  unless  other  sufficient  means  of 
education  are  provided  for  them.  If  a  child  has  in 
any  manner  already  acquired  the  branches  of  learn- 
ing required  by  law  to  be  taught  in  the  pubhc  schools, 
the  law  does  not  compel  any  further  instruction.  If 
he  has  not  acquired  them,  the  law  requires  that  he  be 
instructed  in  them  for  the  specified  time  each  year. 
Sending  a  child  to  a  private  day  school  approved  by 
the  school  committee  is  enough  to  comply  with  the 
requirements  of  the  law,  without  further  inquiry. 

But  if  the  person  having  a  child  under  his  control, 
instead  of  sending  him  to  a  pubhc  school  or  to  a  private 
day  school  approved  by  the  school  committee,  prefers 
to  have  him  instructed  otherwise,  it  will  be  incumbent 
on  him  to  show  that  the  child  has  been  instructed  for 
the  specified  period  in  the  required  branches  of  learn- 
ing, unless  the  child  has  already  acquired  them.  This 
permits   private   instruction   by   tutor,    governess   or 

1  State  V.  Bailey,  157  Ind.  324,  61  N.  E.  730 ;  State  v.  Jackson, 
71  N.  H.  552,  53  Atl.  1021. 

2  State  V.  Peterman,  32  Ind.  App.  665,  70  N.  E.  550.  Contra: 
State  V.  Connort,  69  Wash.  361,  124  Pac.  910. 

16 


Ch.  I]  COIMPULSORY  EDUCATION  [§  13 

parents,  provided  it  is  given  in  good  faith  and  is 
sufficient  in  extent.^ 

The  statutes  enacted  maldng  attendance  at  school 
compulsory  usually  provide  that  parents  or  persons 
having  custody  or  control  of  children  between  cer- 
tain ages  shall  compel  them  to  attend  school  for  a 
certain  period  during  each  school  year.^  And  this 
requirement  under  some  statutes  permits  the  neces- 
sary attendance  at  private  or  other  schools,^  subject, 
however,  to  a  reasonable  excuse  for  non-attendance. 
If  such  a  person  has  a  child  under  his  control  and 
neglects  or  refuses,  without  sufficient  excuse,  to  cause 
the  child  to  attend  school  for  the  prescribed  period  of 
time,  a  punishment  is  provided  for  such  delinquency.^ 

Many  jurisdictions  have  made  special  provisions 
for  children  employed  in  labor,  usually  providing  that 
such  children  shall  attend  school  a  certain  number  of 
hours  each  week  until  they  shall  have  attained  a  certain 
age  and  a  prescribed  proficiency  in  their  studies.^ 

1  Com.  V.  Roberts,  159  Mass.  372,  34  N.  E.  402 ;  State  v.  McCaf- 
fery,  69  Vt.  85,  37  Atl.  234. 

2  Yale  V.  School  District,  59  Conn.  489,  22  Atl.  295 ;  Com.  v. 
Roberts,  159  Mass.  372,  34  N.  E.  402 ;  Jackson  v.  Mason,  145  Mich. 
338, 108  N.  W.  697 ;  State  v.  Hall,  74  N.  H.  61,  64  Atl.  1102 ;  People 
V.  Hendrickson,  125  N.  Y.  App.  Div.  256,  109  N.  Y.  S.  403 ;  In  re 
Compulsory  Attendance  Law,  25  Pa.  Co.  Ct.  503 ;  State  v.  McCaf- 
fery,  69  Vt.  85,  37  Atl.  234 ;  State  v.  MacDonald,  25  Wash.  122, 
64  Pac.  912. 

3  Quigley  v.  State,  5  Ohio  Cir.  Ct.  638. 

^  Com.  V.  Roberts,  159  Mass.  372,  34  N.  E.  402 ;  State  v.  Jackson, 
71  N.  H.  552,  53  Atl.  1021 ;  State  v.  McCaffery,  69  Vt.  85,  37  Atl. 
234 ;  Com.  v.  Hammer,  9  Pa.  Dist.  251 ;  State  v.  MacDonald, 
25  Wash.  122,  64  Pac.  912. 

^  The  Revised  Laws  of  Massachusetts,  Ch.  44,  sec.  1,  as  amended 
by  the  acts  of  1915,  Ch.  81,  sec.  1,  provide  that  :  "Every  child  be- 

17 


§  13]  GENERAL  PRINCIPLES  [Cn.  I 

Compulsory  education  laws  are  not  unconstitutional 
as  an  invasion  of  the  natural  right  of  the  parent  to 
govern  and  control  his  child,  for  the  reason  that  it  is 
competent   for  the  legislature  to   compel   parents  to 

tween  seven  and  fourteen  years  of  age,  every  child  under  sixteen 
years  of  age  who  does  not  possess  such  ability  to  read,  write  and  spell 
in  the  English  language  as  is  required  for  the  completion  of  the  fourth 
grade  of  the  public  schools  of  the  city  or  town  in  which  he  resides, 
and  every  child  under  sixteen  years  of  age  who  has  not  received  an 
employment  certificate  as  provided  in  this  act  and  is  not  engaged  in 
some  regular  employment  or  business  for  at  least  six  hours  per  day 
or  has  not  the  written  permission  of  the  superintendent  of  schools 
of  the  city  or  town  in  which  he  resides  to  engage  in  profitable  em- 
ployment at  home,  shall  attend  a  public  day  school  in  said  city  or 
town  or  some  other  day  school  approved  by  the  school  committee, 
during  the  entire  time  the  public  schools  are  in  session,  subject  to 
such  exceptions  as  are  provided  for  in  sections  four,  five  and  six  of 
this  chapter  and  in  section  three  of  chapter  forty-two  of  the  Revised 
Laws,  as  amended  by  chapter  four  hundred  and  thirty-three  of  the 
acts  of  the  year  nineteen  hundred  and  two,  and  by  chapter  five 
hundred  and  thirty-seven  of  the  acts  of  the  year  nineteen  hundred 
and  eleven ;  but  such  attendance  shall  not  be  required  of  a  child 
whose  physical  or  mental  condition  is  such  as  to  render  attendance 
inexpedient  or  impracticable,  or  who  is  being  otherwise  instructed 
in  a  manner  approved  in  advance  by  the  superintendent  of  schools 
or  the  school  committee.  The  superintendent  of  schools,  or  teachers 
in  so  far  as  authorized  by  said  superintendent  or  by  the  school 
committee,  may  excuse  cases  of  necessary  absence  for  other  causes 
not  exceeding  seven  day  sessions  or  fourteen  half-day  sessions  in 
a^y  period  of  six  months.  For  the  purposes  of  this  section,  school 
committees  shall  approve  a  private  school  only  when  the  instruction 
in  all  the  studies  required  by  law  is  in  the  English  language,  and  when 
they  are  satisfied  that  such  instruction  equals  in  thoroughness  and 
efficiency,  and  in  the  progress  made  therein,  the  instruction  in  the 
public  schools  in  the  same  city  or  town ;  but  they  shall  not  refuse 
to  approve  a  private  school  on  account  of  the  religious  teaching 
therein." 

Sec.  2  of  this  act  as  amended,  provides  that:  "Every  person 
having  under  his  control  a  child  as  described  in  section  one  shall 
cause  him  to  attend  school  as  therein  required,  and,  if  he  fails  for 
seven  day  sessions  or  fourteen  half-day  sessions  within  any  period  of 

18 


Ch.  I]  EXCUSES  FOR  NON-ATTEXDANCE  [§  14 

perform  the  natural  duty  of  education  owed  to  their 
ciiildren.^ 

§  14.   Excuses  for  Non-Attendance. 

It  has  been  held,  however,  that  a  child  is  excused 
from  attending  public  school  when  he  lives  at  such  a 
distance  from  the  schoolhouse  that  it  is  unreasonable 
for  him  to  walk,  unless  a  conveyance  is  provided  by 
the  school  authorities,-  or  where  the  child  is  not  of 
sufficient  physical  or  mental  condition  to  attend  school,^ 
or  where  there  is  some  other  reasonable  excuse  for 
non-attendance.  And  under  some  statutes  the  com- 
pulsory education  law  is  not  operative  where  there  is 
not  sufficient  seating  capacity  to  seat  children  com- 
pelled to  attend,''  or  where  the  absences  are  only  occa- 
sional and  temporary. 5 

six  months  while  such  control  obtains,  to  cause  such  child  so  to 
attend  school,  he  shall,  upon  complaint  by  an  attendance  officer  and 
conviction  thereof,  be  punished  by  a  fine  of  not  more  than  twenty 
dollars,  and  no  physical  or  mental  condition  which  is  capable  of 
correction,  or  which  renders  the  chUd  a  fit  subject  for  special  instruc- 
tion at  public  charge  in  institutions  other  than  public  day  schools, 
shall  avail  as  defence  under  the  provisions  of  this  or  the  preceding 
section,  unless  it  shall  be  made  to  appear  that  the  defendant  has 
employed  all  reasonable  measures  for  the  correction  of  the  condition 
and  the  suitable  instruction  of  the  child. 

Whoever  induces  or  attempts  to  induce  a  child  to  absent  himself 
unlawfully  from  school,  or  employs  or  harbors  a  child  while  school  is 
in  session,  shall  be  punished  by  a  fine  of  not  less  than  ten  nor  more 
than  fifty  dollars." 

1  State  V.  Bailey,  157  Ind.  324,  61  N.  E.  730;  State  v.  Jackson, 
71  N.  H.  552,  53  Atl.  1021. 

2  State  V.  HaU,  74  N.  H.  61,  64  Atl.  1102. 

3  State  V.  Jackson,  71  N.  H.  552,  53  Atl.  1021 ;  Peoples.  Hendrick- 
son,  125  N.  Y.  App.  Div.  256,  109  N.  Y.  S.  403 ;  State  v.  McCaffery, 
69  Vt.  85,  37  Atl.  234.  "  Quigley  v.  State,  5  Ohio  Cir.  Ct.  638. 

5  State  V.  Jackson,  71  N.  H.  552,  53  Atl.  1021. 

19 


§  14]  GENERAL  PRINCIPLES  [Ch.  I 

Such  compulsory  education  statutes  are  penal  ones, 
and  as  such  must  be  strictly  construed.^  Consequently 
where  the  statute  requires  all  principals  or  other 
persons  in  charge  of  schools  to  refuse  admission  of 
any  child  to  the  schools  under  their  charge  or  super- 
vision except  upon  a  certificate  signed  by  a  physician 
setting  forth  that  such  child  has  been  successfully 
vaccinated,  or  that  it  has  previously  had  small-pox, 
the  only  effect  of  the  law  is  to  deprive  the  child  of 
public  school  privileges  unless  the  law  in  this  respect 
has  been  complied  with.  It  is  a  matter  of  choice  by 
the  parent  or  guardian  to  comply  or  not  with  the  law 
as  to  vaccination  as  he  may  choose.  And  if  he  chooses 
not  to  have  the  child  vaccinated,  and  by  reason  thereof 
the  child  sent  to  school  in  good  faith  is  excluded  there- 
from, the  parent  is  not  amenable  to  the  compulsory 
attendance  law.  Such  vaccination  law  does  not  make 
vaccination  compulsory  but  leaves  it  optional  with 
the  parent.  The  compulsory  attendance  law  is  a 
penal  one  and  must  be  strictly  construed ;  the  parent 
in  sending  the  child  to  school  complied  with  that  law.^ 
But  it  has  been  held  that  the  parent  under  such  condi- 
tions must  provide  competent  educational  facihties 
for  his  child  elsewhere  to  avoid  the  consequences  of 
the  compulsory  attendance  law,^  and  that  private 
instruction  at  home  is  not  sufficient.^ 

1  Com.  V.  Smith,  24  Pa.  Co.  Ct.  129. 

2  Com.  V.  Smith,  24  Pa.  Co.  Ct.  129 ;  O'Bannon  v.  Cole,  220  Mo. 
697,  119  S.  W.  424;  State  v.  Turney,  31  Ohio  Cir.  Ct.  222. 

3  People  V.  Ekerold,  211  N.  Y.  386,  105  N.  E.  670. 

*  State  V.  Connort,  69  Wash.  361,  124  Pac.  910.  Contra:  State 
V.  Peterman,  32  Ind.  App.  665,  70  N.E.  550. 

20 


Ch.  I]  EXCUSES  FOR  NON-ATTENDANCE  [§  14 

An  offender  against  the  compulsory  education  law 
must  be  tried  within  the  bounds  of  the  school  district 
where  the  offense  occurred/  and  before  a  proper  court 
or  officers  having  jurisdiction  of  the  offense/  and  upon 
proper  complaint.^  And  the  defendant  will  not  be 
permitted  to  have  a  jury  trial  upon  the  reasonableness 
of  his  excuse  for  keeping  a  child  out  of  school  where 
the  statute  has  made  the  school  board  the  sole  judge 
of  the  sufficiency  of  such  excuses,  and  the  defendant 
has  neglected  to  appear  and  present  such  excuses  to 
the  school  board  when  notified  to  do  so/ 

1  Grahn  v.  State,  6  Ohio  N.  P.  182. 

2  Quigley  v.  State,  5  Ohio  Cir.  Ct.  638. 

3  State  V.  McCaffery,  69  Vt.  85,  37  Atl.  234. 
*  Com.  V.  Hammer,  9  Pa.  Dist.  251. 


21 


CHAPTER  II 
OF  SCHOOL  DISTRICTS 

§  15.   Status  of  School  Districts. 

School  districts  are  not  bodies  politic,  nor  have  they 
the  general  powers  of  corporations  but  may  be  consid- 
ered as  quasi  corporations.^  And  the  law  respecting 
corporations  does  not  generally  apply  to  these  aggre- 
gate bodies,  which  are  usually  created  by  statute, 
although  a  school  district  is  sometimes  held  to  be  a 
municipal  corporation  within  the  contemplation  of 
certain  constitutional  or  statutory  provisions. ^ 

1  First  Nat'l  Bk.  v.  Whisenhunt,  94  Ark.  583,  127  S.  W.  968; 
A.  H.  Andrews  Co.  v.  Delight,  &c.,  95  Ark.  26,  128  S.  W.  361  ; 
Hassett  v.  Carroll,  85  Conn.  23,  81  Atl.  1013 ;  People  v.  Board,  &c., 
255  111.  568,  99  N.  E.  659 ;  State  v.  Gordon,  231  Mo.  547,  133  S.  W. 
44;  Dillon  on  Munic.  Corp.,  5th  ed.,  §  34. 

2  state  V.  Wilson,  65  Kan.  237,  69  Pac.  172 ;  State  v.  Grimes,  7 
Wash.  270,  34  Pac.  836;  Bush  v.  Shipman,  5  111.  186;  State  v. 
Powers,  38  Ohio  St.  54 ;  People  v.  Dupuyt,  71  111.  651 ;  Wharton  v. 
School  Directors,  42  Pa.  358 ;  Littlewort  v.  Davis,  50  Miss.  403 ; 
Stroud  V.  Stevens  Point,  37  Wis.  367 ;  Johnson  v.  Dole,  4  N.  H.  478 ; 
Connor  v.  Board,  &c.,  10  Minn.  439.  But  see  Bassett  v.  Fish, 
75  N.  Y.  303;  Maxon  v.  School,  &c.,  5  Wash.  142,  32  Pac.  110. 
School  districts  are  quasi  corporations  in  Arkansas  (by  statute), 
Kansas,  Minnesota,  New  Hampshire,  New  Jersey  (but  is  a  muni- 
cipality as  to  mechanics'  hens),  New  York  (except  for  certain  consti- 
tutional provisions),  and  Pennsylvania.  They  are  municipal  cor- 
porations in  Illinois,  Indiana,  Iowa  (as  to  issuing  bonds,  but  not  as  to 
receiving  hquor  taxes),  Kentucky  (as  to  incurring  excessive  debt), 
Michigan  (as  to  exemption  in  neghgence  cases).  Dillon  on  Munic. 
Corp.,  5th  ed.,  §  36. 

22 


Ch.  II]  STATUS  OF  SCHOOL  DISTRICTS  [§  15 

School  districts  as  quasi  corporations  do  not  rank 
high  in  the  attributes  of  corporate  existence.  They  are 
purely  auxiUaries  of  the  State,  and  owe  their  creation 
to  general  statutes  which  confer  upon  them  all  the 
powers  they  possess,  prescribe  all  the  duties  they  owe, 
and  impose  all  liabilities  to  which  they  are  subject. 
They  do  not  act  under  charters  as  do  municipal  cor- 
porations,^ and  are  of  the  most  limited  powers  known 
to  the  law,^  having  only  such  powers  as  are  given  to 
them  by  the  statutes  under  which  they  are  created,^ 
together  with  the  implied  powers  necessary  to  execute 
the  express  powers.^  They  are  formed  for  the  single 
purpose  of  maintaining  public  schools,  and  their  cor- 
porate power  and  scope  extends  only  to  such  matters 
as  are  necessary  to  enable  them  properly  to  answer 
that  end.^  Being  corporations  they  can  act  only  in 
their  corporate  capacity,  and  bind  themselves  only 
by  acts  authorized  by  legal  votes  adopted  at  a  regu- 
larly called  district  meeting.^ 

Although  school  districts  do  not  have  all  the  conunon 
law  powers  and  duties  of  corporations,  they  have 
limited  powers  coextensive  with  the  duties  imposed 
upon  them  by  statute  or  usage.  And  in  this  light 
they  have  sufficient  corporate  powers  to  maintain  an 

1  Heller  v.  Stremmel,  52  Mo.  309 ;  Schultes  v.  Eberly,  82  Ala. 
242,  2  So.  345 ;  Shipley  v.  Hacheney,  34  Greg.  302,  55  Pac.  971  ; 
Dillon  on  Munic.  Corp.,  5th  ed.,  §  36. 

^  Pasadena  School  District  v.  City  of  Pasadena,  166  Cal.  7, 
134  Pac.  985. 

3  Mulligan  v.  School  District,  &c.,  241  Pa.  St.  204,  88  Atl.  362. 

^  Royse,  &c.,  v.  Reinhardt,  159  S.  W.  (Tex.)  1010. 

^  Harrington  v.  School  District,  &c.,  30  Vt.  155. 

^  Stoughton  V.  Atherton,  12  Mete.  (Mass.)  105. 

23 


§151  OF  SCHOOL  DISTRICTS  [Ch.  II 

action  on  a  contract  to  build  a  schoolhouse  and  lease 
land,^  or  to  employ  counsel  to  defend  an  action  brought 
against  the  district.^ 

The  legislature  sometimes  provides  that  a  muni- 
cipal and  school  corporation  shall  exist  in  the  same 
territory.  In  such  cases  the  two  corporations  are 
distinct,  and  the  school  corporation  may  be  bound  for 
labor  and  materials  furnished  in  the  building  of  a 
schoolhouse  for  such  corporation.^ 

Although,  by  statute,  a  school  district  is  usually 
entirely  distinct  from  a  municipality  having  the  same 
limits  and  boundaries,'^  it  may,  by  the  express  terms 
of  the  statute,  be  made  a  part  of  the  municipal  govern- 
ment.^ If  not  so  made,  the  municipality  can  make 
no  valid  contract  pertaining  to  the  property  of  the 
school  district.^ 

In  Connecticut  such  districts  are  not  corporations 
separate  from  the  town  or  city,  nor  independent  cor- 
porations themselves  for  all  purposes  of  common 
school  education,  but  are  subject  to  the  ordinances 
of    towns   within    the   limits    of    which    they   exist, 


1  Rumford  District  v.  Wood,  13  Mass.  192. 

2  Gould  V.  Board,  &c.,  34  Hun  (N.  Y.)  16. 

^  Princeton  v.  Gebhart,  61  Ind.  187 ;  Public  Instruction  Com'rs 
V.  Fell,  52  N.  J.  Eq.  689,  29  Atl.  816 ;  Dillon  on  Munic.  Corp.,  5th 
ed.,  §  36. 

^  State  V.  Ogan,  159  Ind.  119, 63  N.  E.  227 ;  Knowles  v.  Board,  &c., 
33  Kan.  692,  7  Pac.  561 ;  Heller  v.  Stremmel,  52  Mo.  309 ;  Water 
Supply  Co.  V.  Albuquerque  City,  9  N.  M.  441,  54  Pac.  969 ;  Heizer 
V.  Yohn,  37  Ind.  415 ;  San  Diego  v.  Daner,  97  Cal.  442,  32  Pac.  561 ; 
Board,  &c.,  v.  Detroit,  30  Mich.  505. 

^  Stroud  V.  Stevens  Point,  37  Wis.  367. 

6  Jarvis  v.  Shelby,  &c.,  62  Ind.  257. 

24 


Ch.  II]  DISTRICTS  DE  FACTO  [§  16 

and  may  be  formed,  altered  or  dissolved  by  such 
towns.^ 

The  system  of  the  free  public  schools  is  a  matter  of 
general  State  concern,  rather  than  a  mere  municipal 
affair,^  and  the  establishment  and  regulation  of  public 
schools  rests  primarily  in  the  legislature.^  In  ascer- 
taining the  will  of  the  legislature  all  statutes  of  the 
State  relating  to  public  schools  must  be  construed 
together.'* 

In  some  States  the  local  management  of  the  public 
schools  of  the  larger  cities  has  been  placed  in  a  board 
of  education  while  the  smaller  villages  are  managed 
under  a  democratic  form  by  an  elected  school  com- 
mittee.^ And  in  the  larger  cities  where  the  division 
is  by  wards,  the  schools  of  such  wards  are  district 
schools.^ 

§  16.   Districts  De  Facto. 

Where  school  districts  have  exercised  and  continue 
to  exercise  governmental  functions  under  color  of 
law  and  legal  right  on  the  theory  that  they  have  been 
regularly  formed,  they  are  districts  de  facto  and  their 
legal  existence  cannot  be  questioned  in  collateral  pro- 
ceedings,^ but  may  be  attacked  only  in  a  proceeding 
brought  in  the  name  of,  or  under  authority  of  the 

»  Hassett  v.  CarroU,  85  Conn.  23,  81  Atl.  1013. 

2  Board,  &c.,  v.  State,  26  Okla.  366,  109  Pac.  563. 

3  Stone  V.  Fritts,  169  Ind.  361,  82  N.  E.  792. 

4  Good  V.  Howard,  174  Ind.  358,  92  N.  E.  115. 

5  Gaddis  V.  School  District,  92  Neb.  701,  139  N.  W.  280. 

6  Maxcy  v.  Oshkosh,  144  Wis.  238,  128  N.  W.  899. 

7  School  District,  &c.,  v.  Young,  163  Mo.  App.  526,  143  S.  W. 
1197 ;  Wood  v.  Calveras  County,  164  Cal.  398,  129  Pac.  283. 

25 


§16]  OF  SCHOOL  DISTRICTS  [Ch.  II 

State,  by  one  having  a  special  interest  affected  by  its 
existence/  on  an  information  in  the  nature  of  quo 
warranto.'^ 

A  school  district  de  facto  has  a  sufficient  legal  exist- 
ence to  enable  it  to  collect/  and  retain  tax  moneys 
collected  by  it/  maintain  an  action  of  trespass  for 
breaking  into  a  schoolhouse/  issue  bonds/  and  take 
property  for  taxes/  without  alleging  or  proving  its 
existence  de  jure. 

The  statutes  of  many  States  provide  that  every 
school  district  shall  be  presumed  to  have  been  legally 
organized  when  it  shall  have  exercised  the  franchises 
and  privileges  of  a  district  for  a  term  of  one  year/ 
and  such  statutes  are  conclusive  only  against  irregu- 
larities and  informalities  which  are  technical  in  their 
character,  and  which  do  not  go  to  the  merits  of  the 
case,  but  they  do  not  raise  a  legal  presumption  of  legal 
organization  which  is  conclusive  against  fraud.  ^  The 
presumption  established  under  such  statute  does  not 
merely  shift  the  burden  of  proof  to  the  party  impeach- 

1  Wilson  V.  Brown,  145  S.  W.  (Tex.)  639 ;  State  v.  Ryan,  41  Utah 
327, 125  Pac.  666 ;  School  District,  &c.,  v.  Young,  152  Mo.  App.  304, 
133  S.  W.  143. 

2  Black  V.  Early,  208  Mo.  281,  106  S.  W.  1014. 

3  Trumbo  v.  People,  75  111.  561. 

"  Hamilton  v.  San  Diego  County,  108  Cal.  273,  41  Pac.  305. 

^  Alderman  v.  School  Directors,  91  111.  179. 

«  School  District,  &c.,  v.  State,  29  Kan.  57. 

^  Stevens  v.  Newcomb,  4  Denio  (N.  Y.)  437. 

8  State  V.  School  District,  &c.,  54  Minn.  213,  55  N.  W.  1122; 
Call  V.  Chadbourne,  46  Me.  206;  CoUins  v.  School  District,  52 
Me.  522;  State  v.  School  District,  &c.,  42  Neb.  499,  60  N.  W. 
912. 

^  Call  V.  Chadbourne,  supra  cit. 

26 


Ch.  II]  ORGANIZATION  OF  DISTRICTS  [§  17 

ing  the  incorporation,  but  is  in  the  nature  of  a  statute 
of  Hmitation.^ 

In  absence  of  such  statute  the  existence  of  a  school 
district  for  a  considerable  length  of  time,  creates  a 
presumption  of  its  legality, ^  but  a  short  existence  raises 
no  such  presumption.^ 

Reputation  is  sufficient  to  prove  the  existence  and 
organization  of  a  school  district  where  there  is  no 
record.''  All  that  is  necessary  in  such  case  is  to  show 
that  there  is  a  district  long  known  and  recognized  as 
such. 

§  17.  Formation  and  Organization  of  Districts. 

The  legislature,  even  without  the  consent  of  the 
inhabitants,  has  the  primary  authority  to  lay  off  terri- 
tory into  school  districts,^  and  this  power  may  be  dele- 
gated to  a  subordinate  body  or  official.®  And  the 
control  of  the  legislature  over  the  public  school  system 
is  so  plenary  that  in  its  discretion,  a  school  district 
may  comprise  a  part  of  a  county,  an  entire  county, 
or  several  counties  or  parts  thereof,  and  may  delegate 

1  State  V.  School  District,  &c.,  54  Min^.  213,  55  N.  W.  1122. 

2  Bowen  v.  King,  34  Vt.  156;  Robie  v.  Sedgwick,  4  Abb.  Dec. 
(N.  Y.)  73;  Rice  v.  McCleUand,  58  Mo.  116;  Bassett  v.  Porter, 
4  Cush.  (Mass).  487. 

3  Thomas  v.  Gibson,  11  Vt.  607. 
''  Barnes  v.  Barnes,  6  Vt.  388. 

5  Schofield  V.  Watkins,  22  111.  66 ;  School  District,  &c.,  v.  Dean, 
17  Mich.  223 ;  Com.  v.  Gardner,  23  Pa.  St.  417 ;  School  District  v. 
Zediker,  4  Okla.  599,  47  Pac.  482 ;  Kuhn  v.  Board  &c.,  4  W.  Va. 
499. 

^  Grove  v.  Board,  &c.,  20  111.  532 ;  Reynolds,  &c.,  v.  McCabe, 
72  Tex.  57, 12  S.  W.  165 ;  Bay  State  Live  Stock  Co.  v.  Bing,  51  Neb. 
570,  71  N.  W.  311. 

27 


§  18]  OF  SCHOOL  DISTRICTS  [Cn.  II 

to  subordinate  school  officers  the  power  of  changing 
existing  districts.^ 

In  some  States  a  school  district  may  be  formed  only 
by  vote  of  the  town,  and  a  district  otherwise  formed 
does  not  possess  corporate  powers,  nor  can  it  authorize 
the  assessment  of  taxes  for  any  purpose.^ 

Independent  school  districts  are  against  the  policy 
of  the  law,  and  will  not  be  erected  where  the  effect 
is  to  separate  the  wealthier  and  poorer  classes  of  a 
district  to  the  detriment  of  the  latter  except  in  cases 
of  extreme  necessity.^ 

Statutory  authority  to  divide  or  consolidate  school 
districts  implies  power  to  create  new  districts  out  of 
established  ones,^  and  the  act  of  establishing  a  school 
district  is  not  consummated  until  entered  on  the  public 
official  record.^  After  an  organization  a  writ  of 
certiorari  will  not  issue  to  set  aside  the  organization 
of  a  school  district  where  it  would  be  a  palpable  injus- 
tice.^ 

§  18.  Petitions   for   Establishment   or   Alteration   of 
Districts. 

School  districts  are  sometimes  formed  at  the  request 
of  the  electors  of  the  territory  expressed  in  the  form  of 
a  signed  petition,  and  such  signers  of  a  petition  for 
the  organization  of  a  school  district  have  a  right  to 

1  Trustees,  &c.,  v.  Brooks,  163  Ky.  200,  173  S.  W.  305. 

2  Tucker  v.  Wentworth,  35  Me.  393. 

3  In  re  Mt.  Pleasant,  &c.,  10  Pa.  Co.  Ct.  588. 

4  Bourland  v.  Snyder,  224  111.  478,  79  N.  E.  568. 

6  Mouser  v.  Spauldin^,  29  Ky.  L.  Rep.  1071,  96  S.  W.  882. 

6  School  Board,  &c.,  v.  Board,  &c.,  146  Mich.  393,  109  N.  W.  664. 

28 


Ch.  n]  BOUNDARIES  OF   DISTRICTS  [§  19 

withdraw  their  names  therefrom  before  any  action 
is  taken  on  such  petition.^ 

A  petition  for  the  estabUshment  of  an  independent 
school  district,  or  for  the  alteration  of  established  dis- 
tricts must  set  forth  every  fact  made  by  statute  indis- 
pensable to  such  establishment  or  alteration.^  It 
should  also  state  that  the  lands  sought  to  be  annexed 
are  adjoining,^  and  if  natural  or  other  adequate  ob- 
stacles demand  a  redistricting,  such  obstacles  should 
be  stated  in  the  petition.^ 

Where  upon  a  petition  in  matters  of  redistricting 
the  statute  requires  the  signatures  of  a  majority  of  the 
inhabitants,  it  must  be  a  majority  in  each  district  to 
be  affected  by  the  proposed  change,  and  a  majority  of 
the  inhabitants  of  the  collective  districts  is  not  suffi- 
cient.^ 

§  19.  Boundaries  of  Districts. 

The  legislature  has  power  to  create,  or  change  the 
boundaries  of  a  school  district  without  the  consent 
of  the  persons  who  reside  in  the  territory  affected.^ 

The  boundaries  of  a  school  district  can  be  on  geo- 
graphical lines  only,  and  may  not  be  on  personal  limita- 

1  People  V.  Strawn,  265  111.  292,  106  N.  E.  840 ;  School  District, 
&c.,  V,  School  District,  &c.,  63  Ark.  543,  39  S.  W.  850.  See  also, 
§  19,  i7ifra. 

2  In  re  Mt.  Pleasant,  &c.,  10  Pa.  Co.  Ct.  588. 

3  In  re  Heidler,  122  Pa.  St.  653,  16  Atl.  97. 

4  In  re  Hatfield,  &c.,  2  Walk.  (Pa.)  169 ;  In  re  Franklin,  &c., 
1  Pa.  Com.  PI.  128. 

5  Sayre  v.  Tompkins,  23  Mo.  443 ;  Allen  v.  Bertram,  70  Iowa  434, 
30  N.  W.  684.  But  see.  People  v.  Allen,  155  111.  402,  40  N.  E.  350 ; 
Hudspeth  v.  Wallis,  54  Ark.  134,  15  S.  W.  184. 

6  Norton  v.  Lakeside,  &c.,  97  Ark.  71,  133  S.  W.  184. 

29 


§  19]  OF  SCHOOL  DISTRICTS  [Ch.  II 

tion.^  Not  only  must  the  division  be  a  geographical 
one,  but  it  must  include  all  the  inhabitants  of  the  town.^ 
But  it  is  not  necessary  that  the  geographical  lines  be 
continuous ;  ^  and  it  has  been  held  that  where  a  dis- 
trict is  laid  out  by  such  lines,  and  then  certain  indi- 
viduals, with  their  polls  and  estates,  are  added  thereto, 
this  operates  as  a  permanent  annexation  of  those  indi- 
viduals and  their  real  estates  to  the  district,  and  does 
not  violate  the  rule  which  requires  districts  to  be  estab- 
lished by  geographical  limits.^  If  the  town  vote  to 
set  off  a  person  by  giving  his  name  but  without  so 
setting  off  his  estate  as  well,  such  vote  is  invalid.^ 

As  a  quasi  corporation  a  school  district  is  separate, 
and  a  distinct  legal  entity  from  a  town  of  the  same 
geographical  limits,^  as  also  is  a  city  school  district 
distinct  from  the  city.^  And  the  making  of  a  city 
officer  an  ex  officio  officer  of  a  school  corporation  hav- 
ing the  same  geographical  limits  as  the  city  does  not 
merge  the  distinct  corporations.^ 

Extending  or  changing  the  limits  of  a  city  or  town 
does  not  of  itself  enlarge  a  school  district  which  corre- 


1  Withington  v.  Eveleth,  7  Pick.  (Mass.)  106 ;  School  District, 
&c.,  V.  Aldrich,  13  N.  H.  139 ;  Pierce  v.  Carpenter,  10  Vt.  480. 

2  Perry  v.  Dover,  12  Pick.  (Mass.)  206 ;  Fry  v.  Athol,  4  Cush. 
(Mass.)  250;  In  re  Wilkins,  &c.,  70  Pa.  St.  108. 

3  Weeks  v.  Batchelcler,  41  Vt.  317. 

^  Alden  v.  Rounseville,  7  Mete.  (Mass.)  218. 

5  Nye  V.  Marion,  7  Gray  (Mass.)  244 ;  Gray  v.  Sheldon,  8  Vt.  402. 

«  North  Troy,  &c.,  v.  Troy,  80  Vt.  16,  66  Atl.  1033 ;  Teeple  v. 
State,  171  Ind.  268,  86  N.  E.  49. 

'  Wood  V.  Calveras  County,  164  Cal.  398,  129  Pac.  283 ;  State  v. 
Henderson,  145  Mo.  329,  46  S.  W.  1076. 

8  Kuhn  V.  Thompson,  168  Mich.  511,  134  N.  W.  722. 

30 


Ch.  II]  ABOLITION  OF  DISTRICTS  [§20 

sponded  geographically  with  the  former  limits  of  the 
city  or  town.^  Such  corresponding  extension  of  the 
school  district  could  be  authorized  only  by  legislative 
act.  2 

When  a  petition  to  change  school  boundaries  is 
pending  in  a  county  court,  a  signer  thereof  upon  show- 
ing that  he  signed  it  under  a  mistake  of  fact,  produced 
by  misrepresentations,  should  be  allowed  upon  appli- 
cation, to  remove  his  name  from  such  petition.^ 

The  mere  act,  by  a  town,  of  putting  up  and  estab- 
lishing bounds  of  existing  school  districts  is  not  a  dis- 
tricting anew.^  And  a  board  of  school  directors  have 
no  power  to  bind  themselves  and  their  successors  by 
contract  that  the  boundaries  of  a  school  district  shall 
not  be  changed.^ 

§  20.   Alteration  and  Abolition  of  Districts. 

The  legislative  power  over  school  districts  is  plen- 
ary, subject  to  any  constitutional  limitations  that 
may  exist,  and  in  the  exercise  of  such  power,  the 
legislature  may  divide,  change  or  abolish  them  at 
pleasure.  And  as  a  part  of  that  power  it  may  make 
provision  for  the  division  of  the  property  and  the 
apportionment  of  the  debts  of  the  old  corporation, 
when  a  portion  of  its  territory  and  public    property 

1  State  V.  Henderson,  145  Mo.  329,  46  S.  W.  1076 ;  State  v.  Inde- 
pendent, &c.,  46  Iowa  425. 

2  State  V.  Mayview,  &c.,  65  Mo.  587. 

3  School  District,  &c.,  v.  School  District,  &c.,  63  Ark.  543,  39 
S.  W.  850.     See  also,  People  v.  Strawn,  265  lU.  292,  106  N.  E.  840. 

*  Adams  v.  Crooks,  7  Gray  (Mass.)  411. 

5  Conley  v.  School  Directors,  32  Pa.  St.  194. 

31 


§  20]  OF  SCHOOL  DISTRICTS  [Ch.  II 

are  transferred  to  the  jurisdiction  of  another  corpora- 
tion. But  in  the  absence  of  such  provision,  the  rule 
of  the  common  law  obtains,  and  that  rule  leaves  the 
property  where  it  is  found,  and  the  debt  upon  the 
original  debtor.^ 

School  districts  as  quasi  corporations,  are  under 
control  of  the  legislature.  They  may  be  changed  and 
divided  at  the  legislative  will,  and  property  may  be 
thus  transferred  from  one  organization  to  another.^ 
The  legislature  may  alter  the  boundaries  of  an  exist- 
ing school  district  without  consulting  the  inhabitants,' 
and  the  power  of  alteration  of  a  school  district  may 
be  delegated  to  a  subordinate  body.'* 

Where  the  nature  of  a  statute  is  such  as  to  establish 
a  new  system  for  the  government  of  public  schools, 
and  purports  to  be  complete  in  itself,  and  is  different 
from  that  which  previously  existed,  the  pre-existing 
law  on  the  subject  is  repealed  and  the  new  statute 
entirely  governs  the  public  school  system.  If  in  such 
superseding  law  no  provision  for  the  alteration  of  estab- 
lished school  districts  is  made,  then  no  power  exists 
for  such  alteration.^ 

In  most  of  the  States  the  division  or  changing  of  the 
limits  of  a  district  can  be  done  only  with  the  consent 
of  a  majority  of  the  legal  voters  of  the  districts  to  be 

1  Pass,  &c.,  V.  Hollywood,  &c.,  156  Cal.  416,  105  Pac.  122. 

2  Connor  v.  Board,  &c.,  10  Minn.  439. 

3  Parker  v.  Titcomb,  82  Me.  180,  19  Atl.  162 ;  McCormac  v. 
Robeson  County,  90  N.  C.  441 ;  Raybould  v.  Hardy,  7  Utah  368, 
26  Pac.  982. 

4  School  District,  &c.,  v.  Zediker,  4  Okla.  599,  47  Pac.  482. 

5  Rodemer  v.  Mitchell,  90  Tenn.  65,  15  S.  W.  1067. 

32 


Ch.  II]  ABOLITION  OF  DISTRICTS  [§  20 

affected  by  the  change  or  the  territory  to  be  converted 
into  the  new  district,^  and  in  some  States  it  is  necessary 
that  a  petition  be  presented  by  a  designated  number 
of  voters  of  the  districts  to  be  affected.^  Many  juris- 
dictions have  statutes  requiring  that  notice  be  given 
of  the  time  and  place  of  the  meeting  at  which  a  pro- 
posed alteration  is  to  be  made.^ 

In  their  discretion  and  under  statutory  authority 
a  school  board  may  order  a  temporary  consolidation 
of  schools  in  a  district,  and  when  the  exercise  of  such 
discretion  is  reasonable  the  courts  will  not  interfere.^ 
And  if  the  statute  provides  that  where  streams  of 
water  make  it  impracticable  for  children  to  attend 
school  in  their  own  district,  the  County  Superintendent 
shall  have  authority,  and  it  shall  be  his  duty,  when 
requested  by  the  parents  of  such  children,  to  attach 
to  adjoining  districts  such  territory  as  he  may  deem 

1  People  V.  Keechler,  194  111.  235,  62  N.  E.  525 ;  Burnett  v.  School 
Inspectors,  97  Mich.  103,  56  N.  W.  234 ;  State  v.  Grimshaw,  1  S.  W. 
(Mo.)  363 ;  State  v.  Compton,  28  Neb.  485,  44  N.  W.  660 ;  State  v. 
Deshler,  25  N.  J.  L.  177 ;  Whitmire  v.  State,  47  S.  W.  (Tex.)  293. 

2  School  District,  &c.,  v.  School  District,  &c.,  63  Ark.  543, 39  S.  W. 
850 ;  Dartmouth  Savings  Bank  v.  School  District,  &c.,  6  Dak.  332 ; 
People  V.  Keechler,  194  lU.  235,  62  N.  E.  525 ;  Henricks  v.  State, 
151  Ind.  454,  50  N.  E.  559,  51  N.  E.  933 ;  Perrizo  v.  Kesler,  93  Mich. 
280,  53  N.  W.  391 ;  State  v.  School  District,  42  Minn.  357,  44  N.  W. 
120 ;  State  v.  HUl,  152  Mo.  234,  53  S.  W.  1062 ;  School  District,  &c., 
V.  School  District  &c.,  55  Neb.  716,  76  N.  W.  420;  State  v.  Gang, 
10  N.  D.  331,  87  N.  W.  5 ;  State  v.  Wright,  17  Ohio  St.  32 ;  School 
District,  &c.,  v.  Lincohi  County,  9  S.  D.  291,  68  N.  W.  746. 

3  Howard  v.  Forester,  109  Ky.  336,  59  S.  W.  10 ;  Butterfield 
V.  School  District,  &c.,  61  Me.  583 ;  State  v.  Browning,  28  N.  J.  L. 
556;  People  v.  Hooper,  13  Hun  (N.  Y.)  639;  State  v.  Clifton,  113 
Wis.  107,  88  N.  W.  1019. 

*  Heard  v.  School  Directors,  45  Pa.  St.  93. 

33 


§  20]  OF   SCHOOL   DISTRICTS  [Cii.  II 

necessary  for  the  purpose  of  giving  said  children  school 
privileges,  the  County  Superintendent  has  authority 
to  make  such  temporary  alteration  of  districts  as  will 
accomplish  its  purpose,  and  his  decision  may  not  be 
collaterally  attacked.^  But  such  authority  does  not 
authorize  a  change  in  boundaries  of  districts  with- 
out notice.^  Where  the  officials  making  the  altera- 
tion acted  within  their  jurisdiction,  the  remedy  by 
which  the  legality  of  an  alteration  of  a  school  district 
may  be  tested  is  on  information  in  the  nature  of  quo 
warranto  against  the  proper  officers ;  and  the  legality 
cannot  be  questioned  in  a  collateral  proceeding.^ 

If  the  territory  of  a  school  district  is  changed,  the 
original  organization  will  retain  all  of  its  property 
unless  some  statutory  provision  is  made  to  the  con- 
trary,^ and  no  apportionment  of  funds  may  be  made 
in  the  absence  of  a  statute  providing  for  such  appor- 
tionment.^ 

Upon  organizing  new  districts  out  of  an  old  one  in 

1  State  V.  Palmer,  18  Neb.  644,  26  N.  W.  469. 

2  School  District,  &c.,  v.  Coleman,  39  Neb.  391,  58  N.  W.  146. 

3  School  Directors  v.  School  Directors,  135  111.  464,  28  N.  E.  49  ; 
State  V.  Palmer,  18  Neb.  644,  26  N.  W.  469 ;  School  District,  &c.,  v. 
Gibbs,  52  Kan.  564,  35  Pac.  222 ;  Roeser  v.  Gartland,  75  Mich.  143, 
42  N.  W.  687. 

School  District,  &c.,  v.  School  District,  &c.,  55  Neb.  716,  76  N.  W. 
420. 

"  Winona  v.  School  District,  &c.,  40  Minn.  13,  41  N.  W.  539 ; 
Briggs  V.  School  District,  &c.,  21  Wis.  348. 

5  Cooke  V.  School  District,  &c.,  12  Colo.  453,  21  Pac.  496 ;  State 
V.  School  District,  &c.,  90  Mo.  395,  2  S.  W.  420 ;  Morrow  County  v. 
Hendryx,  14  Ore.  397,  12  Pac.  806 ;  Joint  School  District,  &c.,  v. 
School  District,  &c.,  92  Wis.  608,  66  N.  W.  794.  But  see,  Towle  v. 
Brown,  110  Ind.  599,  10  N.  E.  628. 

34 


Ch.  II]  ABOLITION  OF  DISTRICTS  [§  20 

the  absence  of  statutory  provisions  to  the  contrary, 
a  new  district  takes  the  property  which  happens  to 
fall  within  its  limits,^  and  new  districts  also  assume  the 
Hability  of  the  old  districts.^  Statutes  providing  for 
a  transfer  of  liabilities  to  a  new  school  district  have 
been  held  constitutional.^ 

Where  the  statute  authorizes  the  combining  of 
several  school  districts  for  their  common  good,  and 
provides  that  the  several  school  committees  shall 
combine  into  one  joint  committee  which  shall  be  the 
agents  for  each  of  the  towns  entering  into  the  alliance, 
the  power  of  employing  and  dismissing  a  teacher  rests 
with  the  joint  committee,  and  the  non-concurrence 
of  a  part  of  the  joint  committee  which  stands  as  the 
school  committee  of  one  of  the  towns,  will  not  relieve 
that  town  from  hability  for  the  lawful  acts  of  the  joint 
committee.^ 

When  a  schoolhouse  is  erected  by  a  district,  the 
legal  title  vests  in  the  district.  But  the  district  may 
be  considered  as  holding  the  property  in  trust  for  the 
town  or  its  inhabitants.  And  when  the  town  abohshes 
one  district  and  creates  another,  the  property  immedi- 
ately vests  in  the  new  district,  as  property  holden  in 

^  School  District,  &c.,  v.  Tapley,  1  Allen  (Mass.)  49 ;  Whitmore 
V.  Hogan,  22  IVIe.  564 ;  Board,  &c.,  v.  Board,  &c.,  30  W.  Va.  424, 
4  S.  E.  640 ;  Goulding  v.  Peabody,  170  Mass.  483,  49  N.  E.  752 ; 
Barre  v.  School  District,  &c.,  69  Vt.  374,  37  Atl.  1111. 

^  Brewer  v.  Pahner,  13  Mich.  104 ;  School  District,  &c.,  v.  Green- 
field, 64  N.  H.  84,  6  Atl.  484 ;  McCuUy  v.  Board,  &c.,  63  N.  J.  L. 
18,  42  Atl.  776. 

3  Perrizo  v.  Kesler,  93  Mich.  280,  53  N.  W.  391 ;  Rawson  v. 
Spencer,  113  Mass.  40. 

"  Freeman  v.  Bourne,  170  Mass.  289,  49  N.  E.  435. 

35 


§21]  OF   SCHOOL   DISTRICTS  [Ch.  II 

trust  passes  from  one  trustee  to  another,  when  one 
dies,  resigns,  or  is  removed,  and  another  is  appointed 
in  his  stead.  If  any  time  elapsed  between  the  aboU- 
tion  of  one  district  and  the  estabhshment  of  another, 
the  legal  title  of  the  property  might  be  said  to  vest 
in  the  cestui  que  trust  or  to  lie  in  abeyance.  But  such 
a  case  can  hardly  be  supposed  to  exist,  for  the  formation 
of  the  new  districts  is  the  annihilation  of  the  old  ones. 
The  same  act  of  the  town  accomplishes  both  objects 
simultaneously.  Whenever  therefore  a  town  forms 
new  districts,  by  aboHshing  the  old  ones,  the  legal 
title  to  the  existing  schoolhouse  vests  in  those  of  the 
new  districts  within  whose  territory  they  happen  to  fall.^ 
Upon  a  separation  of  the  district  in  which  a  school 
officer  resides,  so  that  his  place  of  residence  is  no  longer 
in  the  district  which  he  theretofore  represented,  his 
office  becomes  immediately  vacant  and  may  be  filled 
by  appointment.2  ^j^^j  where  two  districts  are  united 
into  one,  and  the  name  of  one  of  the  districts  thus 
consolidated  is  given  to  the  consolidated  district,  such 
district  is  a  new  one.^ 

§  21.   Powers  and  Management  of  Districts. 

A  school  district  usually  has  the  power  to  purchase, 
hire,  or  build  schoolhouses,  and  to  determine  the 
amount  of  money  necessary  to  be  used  for  that  pur- 
pose, as  well  as  the  power  to  raise  the  necessary  funds,^ 

1  Stoneham  District  v.  Richardson,  23  Pick.  (Mass.)  62. 

2  School  District  v.  Wolf,  78  Kan.  805,  98  Pac.  237. 

3  Bames  v.  Ovitt,  47  Vt.  316. 

*  Gihnan  v.  Bassett,  33  Conn.  298 ;  George  v.  Second  School 
District,  6  Mete.  (Mass.)  497 ;  Peters  v.  Warren  Township,  98  Mich. 

36 


Ch.  II]  MANAGEMENT  OF  DISTRICTS  [§21 

and  for  the  purpose  of  providing  funds  for  building 
purposes  a  school  district  has  the  power  to  issue  bonds. ^ 
In  some  States,  however,  bonds  cannot  be  issued,  but 
the  funds  may  be  raised  by  taxation,^  and,  if  the  elec- 
tors of  the  district  fail  to  act,  the  board  of  directors 
has  the  power  to  determine  the  amount  to  be  raised.^ 

A  school  district  can  exercise  no  powers  other  than 
those  conferred  by  statute,  or  necessarily  implied  in 
connection  therewith,^  although  school  districts  are 
usually  empowered  to  make  contracts  in  relation  to 
school  matters,^  such  powers  being  always  subject 
to  the  constitutional  and  statutory  limitations.^  They 
are  also  usually  vested  with  the  power  of  holding 
property  for  school  purposes.'^ 

Where  it  is  necessary  to  hire  a  house  or  special  room 
for  school  purposes,  the  school  officers  have  the  power 

54,  56  N.  W.  1051 ;  Blake  v.  Sturtevant,  12  N.  H.  567 ;  Benjamin  v. 
Hull,  17  Wend.  (N.  Y.)  437 ;  Greenbanks  v.  Boutwell,  43  Vt.  207. 

1  Vaughan  v.  School  District,  &c.,  27  Ore.  57,  39  Pac.  393 ;  Fol- 
som  V.  School  Directors,  91  111.  402. 

2  Richardson  v.  McReynolds,  114  Mo.  641,  21  S.  W.  901. 

^  Stevenson  v.  District  Township,  35  Iowa  462 ;  Oilman  v. 
Bassett,  33  Conn.  298 ;  Blake  v.  Sturtevant,  12  N.  H.  567. 

4  School  District,  &c.,  v.  Bailey,  12  Me.  254 ;  Third  School 
District  v.  Atherton,  12  Mete.  (Mass.)  105 ;  Bank  v.  Brainerd,  &c., 
49  Minn.  106,  51  N.  W.  814 ;  Buchanan  v.  School  District,  25  Mo. 
App.  85 ;  Farnum's  Petition,  51  N.  H.  376 ;  Oould  v.  Board,  &c.,  34 
Hun  (N.  Y.)  16 ;  State  v.  Bacon,  31  S.  C.  120,  9  S.  E.  765 ;  Board, 
&c.,  V.  Board,  &c.,  30  W.  Va.  424,  4  S.  E.  640. 

^  Baker  v.  Chambles,  4  Oreene  (la.)  428. 

^  Everett  v.  Independent  School  District,  109  Fed.  697 ;  Camp- 
bell V.  Indianapolis,  155  Ind.  186,  57  N.  E.  920;  Edmundson  v. 
Independent  School  District,  98  Iowa  639,  67  N.  W.  671 ;  Wilson  v. 
Board,  &c.,  12  S.  D.  535,  81  N.  W.  952. 

7  Carson  v.  State,  27  Ind.  465 ;  Le  Couteulx  v.  Buffalo,  33  N,  Y. 
335 ;  Locker  v.  Keiler,  110  Iowa,  707,  80  N.  W.  433. 

37 


§21]  OF  SCHOOL  DISTRICTS  [Ch.  II 

to  do  so,^  and,  if  the  school  directors  fail  to  provide 
a  suitable  room  or  building  for  school  purposes,  manda- 
mus will  lie  to  compel  them  to  do  so.^  In  some  States 
it  is  provided  that  the  power  of  providing  schoolhouses 
is  vested  in  school  officers  instead  of  in  the  electors ;  ^ 
but  it  is  held  that  school  boards  or  their  agents  have 
no  power  to  exceed  the  amount  of  appropriations 
or  a  prescribed  amount,  and  that,  if  they  do  so, 
the  district  will  not  be  bound  beyond  the  amount 
limited.^ 

By  statute  it  is  generally  made  the  duty  of  the  dis- 
trict board  of  directors,  or  some  other  officials,  to  take 
control  of  and  manage  the  property  used  for  school 
purposes  in  the  district.  Incidental  to  these  duties 
they  have  the  authority  to  bring  suit  for  any  injury 
to  the  school  property.^  .Another  incident  of  the 
trustees  is  that  they  may  invest  a  reasonable  amount 
in  insurance,®  and  have  the  authority  to  contract  for 
repairs.^ 

It  has  been  held  that  school  directors  may  not  au- 

1  Scripture  v.  Burns,  59  Iowa  70,  12  N.  W.  760 ;  Allen  v.  School 
District,  &c.,  15  Pick.  (Mass.)  35 ;  Millard  v.  Board,  &c.,  19  111. 
App.  48. 

2  School  Directors  v.  People,  186  111.  331,  57  N.  E.  780. 

3  In  re  Walker,  179  Pa.  St.  24,  36  Atl.  148. 

4  Wilson  V.  School  District,  &c.,  32  N.  H.  118;  McGilllvray  v. 
Joint  School  District,  &c.,  112  Wis.  354,  88  N.  W.  310. 

^  Alderman  v.  School  Directors,  91  111.  179 ;  School  District,  &c., 
V.  Arnold,  21  Wis.  657. 

"  Clark  School  Township  v.  Home  Insurance  Co.,  20  Ind.  App. 
543,  51  N.  E.  107. 

7  Knowles  v.  School  District,  &c.,  63  Me.  261 ;  Giles  v.  School 
District,  &c.,  31  N.  H.  304;  Van  Dolsen  v.  Board,  &c.,  162  N.  Y. 
446,  56  N.  E.  990. 

38 


Ch.  II]  DISTRICT  MEETINGS  [§  22 

thorize  the  use  of  school  property  for  other  than  school 
purposes,  such  as  religious  meetings,^  although  statutes 
permitting  directors  to  authorize  the  use  of  school 
property  for  rehgious  purposes  have  been  held  con- 
stitutional.2  It  has  also  been  held  that  there  is  no 
authority  to  use  school  property  for  political  or  social 
gatherings,^  or  for  pubhc  meetings  to  discuss  matters 
of  general  interest.  And  not  even  a  majority  of  the 
taxpayers  of  a  district,  against  the  objection  of  another 
taxpayer  of  the  district,  can  authorize  such  use  by 
formal  vote  or  otherwise.*  But  in  Indiana  it  has 
been  held  that  township  trustees  may  use  school  prop- 
erty for  any  township  purposes,  including  the  holding 
of  elections.^ 

In  some  States  authority  to  select  a  site  upon  which 
to  erect  a  school  building  is  left  to  the  voters  of  the 
particular  district,*^  while  in  other  States  certain  officials 
specified  by  statute  are  given  the  power  to  make  the 
selection.'' 

§  22.   District  Meetings. 

School  district  meetings  are  called  in  accordance 
with  the  provisions  governing  the  procedure  of  warn- 

1  Hysong  v.  Gallitzin,  &c.,  164  Pa.  St.  629,  30  Atl.  482. 

2  Nichols  V.  School  Directors,  93  III.  61. 

^  Spencer  v.  Joint  School  District,  &c.,  15  Kan.  259. 

"  Bender  v.  Streabich,  182  Pa.  St.  251,  37  Atl.  853 ;  Spencer  v. 
Joint  School  District,  &c.,  15  Kan.  259. 

^  Harmony,  &c.,  v.  Osborne,  9  Ind.  458. 

^Leighton  v.  Ossipee,  &c.,  66  N.  H.  548,  31  Atl.  899;  School 
Directors  v.  People,  90  lU.  App.  670. 

^  Rodgers  v.  Independent  School  District,  100  Iowa  317,  69  N.  W. 
544;  Roth  v.  MarshaU,  158  Pa.  St.  272,  27  Atl.  945. 

39 


§  22]  OF   SCHOOL   DISTRICTS  [Ch.  II 

ing  and  calling  usually  provided  by  statute,^  and  the 
power  to  warn  for  meeting  is  distinct  from  the  power 
to  call.2 

Where  the  clerk  is  empowered  lo  call  annual  meet- 
ings of  a  school  district,  he  cannot,  by  reason  of  this 
limitation  upon  his  authority,  call  any  meetings  other 
than  such  annual  meetings.^  If  the  statutes  authorize 
a  third  person  to  call  a  meeting  of  a  school  district 
when  the  designated  officers  fail  to  act,  such  officer 
may  also  act  when  the  designated  officers  have  illegally 
called  a  meeting,'*  and  proceedings  of  a  meeting  illegally 
held  may  be  ratified  at  a  subsequent  legal  meeting.^ 
Where  the  statute  provides  for  a  meeting  to  be  called 
upon  application  of  a  designated  number  of  voters, 
the  appHcation  must  be  strictly  made  in  accordance 
with  the  statutes. 

It  is  usually  provided  by  statute  that  the  officer 
calHng  the  meeting  shall  give  notice  of  the  time,  place 
and  purpose  of  the  meeting,  and  unless  the  statute 
be  strictly  followed  the  proceedings  of  the  meeting 
will  be  invalid.^  Where  the  time  and  place  of  a  meet- 
ing is  designated  by  statute,  it  is  not  necessary  to  state 

1  Fletcher  v.  Lincolnville,  20  Me.  439 ;  Starbird  v.  School  District, 
51  Me.  101 ;  Giles  v.  School  District,  31  N.  H.  304 ;  State  v.  Lockett, 
54  Mo.  App.  202 ;  Holland  v.  Davies,  36  Ark.  446. 

2  Stone  V.  School  District,  8  Gush.  (Mass.)  592. 

3  Third  School  District  v.  Atherton,  12  Mete.  (Mass.)  105. 

4  Pickering  v.  De  Rochemont,  66  N.  H.  377,  23  Atl.  88. 
6  Jordan  v.  School  District,  &c.,  38  Me.  164. 

^  Bartlett  v.  Kinsley,  15  Gonn.  327 ;  Fletcher  v.  Lincolnville, 
20  Me.  439 ;  Perry  v.  Dover,  12  Pick.  (Mass.)  206 ;  Davis  v.  Rapp, 
43  N.  J.  L.  594 ;  Hunt  v.  School  District,  &c.,  14  Vt.  300 ;  Ghapin  v. 
School  District,  30  N.  H.  25. 

40 


Ch.  II]  DISTRICT  MEETINGS  [§  22 

it  in  the  notice/  and  a  date  on  the  notice  is  not  essen- 
tial.2  If  the  statute  requires  that  a  notice  of  the  meet- 
ing specify  the  object  for  which  the  meeting  is  called, 
no  other  matters  not  connected  therewith  may  be  law- 
fully acted  upon.^  But  the  object  of  the  meeting  may 
be  unnecessary  in  the  notice  of  an  annual  meeting.* 
And  where  a  notice  of  the  purposes  for  which  a  meet- 
ing is  called  is  necessary  it  must  be  clearly  expressed.^ 
The  meeting  should  be  opened  within  a  reasonable  time 
after  the  hour  specified  in  the  notice,  and,  where  it  is 
alleged  that  the  meeting  was  not  properly  called,  the 
one  making  the  allegation  has  the  burden  of  proving 
it.« 

It  is  necessary  that  a  meeting  of  the  inhabitants  of 
a  school  district  should  be  opened  within  a  reasonable 
time  after  the  hour  specified.  What  would  be  a  reason- 
able time  depends  in  some  measure,  upon  the  circum- 
stances of  each  particular  case.  If  the  delay  is  for 
the  mere  purpose  of  enabling  all  the  inhabitants  to 
assemble,  and  without  prejudice  to  any  one,  it  would 

»  Hodgkin  v.  Fry,  33  Ark.  716 ;  State  v.  Edwards,  151  Mo.  472, 
52  S.  W.  373. 

2  Braley  v.  Dickinson,  48  Vt.  599 ;  Jordan  v.  School  District, 
&c.,  38  Me.  164 ;  Rideout  v.  School  District,  1  Allen  (Mass.)  232. 

3  Wright  V.  North  School  District,  53  Conn.  576,  5  Atl.  708 ; 
Lander  v.  School  District,  33  Me.  239 ;  Whitney  v.  Stowe,  111  Mass. 
368;  Holbrook  v.  Faulkner,  55  N.  H.  311;  School  District,  &c.,  v. 
Smith,  67  Vt.  566,  32  Atl.  484. 

4  Seabury  v.  Rowland,  15  R.  I.  446,  8  Atl.  341. 

5  Bartlett  v.  Kingsley,  15  Conn.  327;  Reed  v.  Acton,  117  Mass. 
384 ;  Peters  v.  Warren,  &c.,  98  Mich.  54,  56  N.  W.  1051 ;  People  v. 
Board,  &c.,[48  Hun  (N.  Y.)  618, 1  N.  Y.  S.  593 ;  Weeks  v.  Batchelder, 
41  Vt.  317. 

^  South  School  District  v.  Blakeslee,  13  Conn.  227. 

41 


§22]  OF   SCHOOL   DISTRICTS  [Ch.  II 

be  outrageously  unjust  to  hold  their  proceedings  illegal. 
But  on  the  other  hand  if  the  delay  were  such  as  to 
create  a  general  belief  that  no  meeting  would  be  holden, 
and  thereby  induce  the  greater  body  of  the  inhabitants 
to  disperse,  and  a  few  were  afterward  to  open  the 
meeting  and  pass  votes  which  could  not  have  been 
passed  except  for  the  delay,  it  would  be  unjust  to 
hold  them  legal  and  binding.  Therefore  it  has  been 
held  that  a  delay  of  one  hour  and  five  minutes,  not 
shown  unreasonable,  is  of  itself  not  sufficient  to 
invalidate  the  proceedings  of  such  meeting,  although 
it  was  further  shown  that  a  few  persons  had  gone 
away  for  the  very  purpose  of  preventing  the  meeting 
from  acting.^ 

A  school  district  meeting  should  be  characterized 
by  fair  play,  frankness  and  liberahty,  and  not  savor 
too  much  of  the  factional  caucus,  to  justify  its  judicial 
sanction.  Where  the  electors  of  a  school  district 
met  at  three  o'clock,  organized  forty  minutes  later, 
proceeded  to  vote,  and  thirty  minutes  after  organizing, 
adjourned,  the  president  declared  the  polls  closed. 
Then  twenty  minutes  thereafter  while  all  the  people 
composing  the  meeting  were  present  in  the  voting  place, 
with  the  president  in  the  chair  and  the  secretary  in 
his  place,  two  qualified  electors  appeared  and  tendered 
their  votes  which  were  refused  on  the  ground  that  the 
polls  had  closed.  The  court  held  that  these  votes 
should  have  been  received  and  counted. ^ 

Where  the  statute  provides  that  the  annual  school 

1  South  School  District  v.  Blakeslee,  13  Conn.  227. 

2  State  V.  Woolem,  39  Iowa  380. 

42 


Ch.  II]        NOTICE  OR  WARNING  OF  MEETINGS        [§  23 

meeting  of  each  district  shall  be  held  on  a  certain  date 
it  is  mandatory,  and  it  must  be  held  on  that  date ;  other- 
wise any  election  of  officers  will  be  illegal.^  But  it 
is  not  necessary  that  officers  be  elected  within  the 
bounds  of  the  district,  if  the  meeting  held  outside  of 
the  district  is  otherwise  unobjectionable.^ 

Where  the  notice  of  a  special  school  meeting  speci- 
fies the  hour  at  which  it  will  begin,  and  the  meeting 
is  opened  promptly  at  the  time  specified,  the  business 
transacted  therein  will  not  be  invalid  because  the  meet- 
ing was  adjourned  within  a  half  hour.^  And  where 
parliamentary  rules  are  not  strictly  followed  in  the 
adjournment  of  a  school  district  meeting,  the  adjourn- 
ment is  not  thereby  invalidated  where  all  electors 
present  acquiesced.^ 

In  the  case  of  a  meeting  adjourned  to  a  fixed  time, 
any  matters  may  be  acted  on  that  might  have  been 
legally  acted  on  at  the  preceding  meeting,  providing 
no  intervening  rights  of  third  parties  have  become 
vested  in  the  meantime.^ 

§  23.   Warning  or  Notice  of  Meetings. 

A  notice,  when  required  by  statute,  is  generally 
held  not  binding  unless  given  as  the  law  directs  or 
allows.^    And  the  notice,   required  by  statute,   of  a 

1  State  V.  Cones,  15  Neb.  444,  19  N.  W.  682 ;  Willard  v.  Pike, 
59  Vt.  202,  9  Atl.  907. 

2  Myer  v.  Crispell,  28  Barb.  (N.  Y.)  54. 

3  Regan  v.  School  District,  &c.,  44  Wash.  523,  87  Pac.  828. 
^  Reeves  v.  Ryder,  91  Kan.  639,  138  Pac.  592. 

5  Reed  v.  Acton,  117  Mass.  384 ;  Maher  v.  State,  32  Neb.  354,  49 
N.  W.  436,  441. 

6  AUen  V.  Strickland,  100  N.  C.  225,  6  S.  E.  780. 

43 


§23]  OF   SCHOOL   DISTRICTS  [Ch.  II 

school  district  election  is  essential  to  the  validity 
of  such  election ;  ^  although  in  New  York,  the  statute 
requiring  notice  of  school  meetings  is  held  to  be  direc- 
tory only,  and  the  want  of  notice  unless  wilfully  or 
fraudulently  omitted,  does  not  render  its  meeting  in- 
valid, nor  the  proceedings  void.^ 

It  is  usually  provided  by  statute  that  when  a  new 
school  district  is  to  be  formed,  notice  thereof  is  to  be 
given  the  inhabitants  of  the  district  by  posting,  or  by 
publication.^  In  the  issuance  of  such  notice  mere 
informalities  are  not  jurisdictional  defects,  nor  is  the 
fact  that  the  notice  covers  territory  not  actually  taken.^ 
But  misinformation  as  to  the  date,  such  as  publishing 
the  meeting  for  the  11th  of  August,  while  the  meet- 
ing was  actually  held  the  8th  of  August,  makes  the 
matter  jurisdictional  and  the  entire  proceedings  in- 
valid.^ And  the  requirement  of  notice  is  jurisdictional, 
therefore  if  no  notice  be  given,  even  though  a  consent 
be  filed  by  a  majority  of  the  citizens  of  the  district 
affected,  the  proceedings  are  invalid  because  the 
minority  always  have  a  right  to  be  heard. ^    The  pub- 


1  State  V.  Staley,  90  Kan.  624,  135  Pac.  602. 

2  Marchant  v.  Langworthy,  6  Hill  (N.  Y.)  646 ;  Contra:  Gentle  v. 
School  Inspectors,  73  Mich.  40,  40  N.  W.  928. 

3  Butterfield  v.  School  District,  &c.,  61  Me.  583 ;  First  School 
District  v.  Ufford,  52  Conn.  44 ;  Gravel  Hill  School  District  v.  Old 
Farm  School  District,  55  Conn.  244,  10  Atl.  689 ;  Irvin  v.  Gregory, 
86  Ga.  605, 13  S.  E.  120 ;  Fractional  School  District,  &c.,  v.  Metcalf, 
93  Mich.  497,  53  N.  W.  627 ;  Ferryman  v.  Bethune,  89  Mo.  158, 
1  S.  W.  231 ;  State  v.  Graham,  60  Wis.  395,  19  N.  W.  359. 

"  Parman  v.  School  Inspectors,  49  Mich.  63,  12  N.  W.  910. 
^  Coulter  V.  School  Inspectors,  59  Mich.  391,  26  N.  W.  649. 
•^  Gentle  v.  School  Inspectors,  73  Mich.  40,  40  N.  W.  928. 

44 


Ch.  II]        NOTICE  OR  WARNING  OF  MEETINGS        [§23 

lication  or  posting  of  the  notice  is  also  jurisdictional ;  ^ 
but  it  has  been  held  that  appearance  at  a  meeting 
called  to  act  upon  a  petition  for  redistricting,  is  a 
waiver  of  notice  and  irregularity  in  the  issuance  of  it.^ 

Where  a  mode  is  provided  for  the  calling  of  meet- 
ings, that  mode  must  be  strictly  followed,  and  it  is 
not  sufficient  to  show  that  a  meeting  was  in  fact  held 
and  attended  by  all  inhabitants  who  were  qualified  to 
attend.^  And  where  different  parties  call  and  hold 
legal  meetings,  the  first  legally  held  has  precedence.^ 

Where  the  statute  provides  that  if  the  official  who 
primarily  has  the  duty  to  call  a  meeting,  neglects  or 
refuses  to  do  so,  then  some  other  specified  officials 
have  that  duty,  such  neglect  or  refusal  must  exist 
and  be  shown  to  make  valid  the  proceedings  of  a  meet- 
ing called  by  the  officials  secondarily  having  that 
duty.5 

Authority  to  warn  meetings  does  not  include  author- 
ity to  call  meetings ;  ^  and  a  meeting  called  to  see  if 
the  district  will  prescribe  the  mode  of  calling  all  future 
meetings  of  the  district,  will  not  authorize  the  vote 
of  the  meeting  on  a  mode  of  warning  future  meetings.' 
A  statute  providing  that  all  warnings  for  school  dis- 
trict meetings  shall,  before  the  same  are  posted,  be 

1  Graves  v.  Joint  School  Inspectors,  &c.,  102  Mich.  634,  61  N.  W. 
60 ;  State  v.  Compton,  28  Neb.  485,  44  N.  W.  660. 

2  School  District,  &c.,  v.  Carr,  55  N.  H.  452. 

^  Moore  v.  Newfield,  4  Me.  44 ;  School  District,  &c.,  v.  Lord, 
44  Me.  374. 

*  School  District,  &c.,  v.  Lord,  44  Me.  374. 

^  Starbird  v.  School  District,  &c.,  51  Me.  101. 

"  Stone  V.  School  District,  &c.,  8  Gush.  (Mass.)  592. 

'  Rideout  v.  School  District,  &c.,  1  Allen  (Mass.)  232. 

45 


§23]  OF   SCHOOL   DISTRICTS'  [Ch.  II 

recorded  by  the  town  clerk  of  such  school  district, 
is  merely  directory,  and  a  neglect  upon  the  part  of  a 
clerk  to  comply  with  it  does  not  vitiate  the  proceed- 
ings of  the  meeting  if  otherwise  regular.^ 

Where  the  statute  requires  that  the  time  and  place 
of  a  warned  meeting  shall  be  specified  in  the  warning, 
if  the  time  for  holding  the  meeting  is  omitted  in  such 
warning  the  proceedings  of  such  meeting  are  invalid.^ 
And  where  the  warning  of  a  district  meeting  is  required 
by  the  statute  to  state  the  business  to  be  transacted, 
the  omission  thereof  from  the  warning  is  not  rendered 
valid  by  the  fact  that  for  nine  years  previously  such 
omission  had  been  made,^  inasmuch  as  the  powers 
of  a  school  district  being  wholly  statutory  they  cannot 
be  enlarged  nor  diminished  by  proof  of  usage, ^  and 
abuses  of  power  and  violation  of  rights  derive  no 
sanction  from  time  or  usage. ^ 

Where  the  time  for  holding  annual  meetings  is 
fixed  by  statute,  it  is  not  necessary  to  state  the  time 
in  the  notice;  the  place  of  holding  such  meetings  is 
sufficient.^  And  such  notice  requires  the  signatures 
of  only  a  majority  of  the  directors ;  ^  but  a  minority 
is  not  sufficient.^ 

1  Adams  v.  Sleeper,  64  Vt.  544,  24  Atl.  990;  People  v.  Allen, 
6  Wend.  (N.  Y.)  487 ;  Torrey  v.  Millbury,  21  Pick.  (Mass.)  64 ; 
Colt  V.  Eves,  12  Conn.  253. 

2  Sherwin  v.  Bugbee,  16  Vt.  439. 

3  Scott  V.  School  District,  &c.,  67  Vt.  150,  31  Atl.  145. 

4  Dillon  on  Mimic.  Corp.,  5th  ed.,  §  240. 

5  Hood  V.  Lynn,  1  Allen  (Mass.)  103. 
«  Hodgkin  V.  Fry,  33  Ark.  710. 

7  Davies  v.  Holland,  43  Ark.  425. 

8  State  V.  Lockett,  54  Mo.  App.  202. 

46 


Cfi.  II]      NOTICE   OR  WARNING  OF  MEETINGS  [§  23 

Special  meetings  of  school  districts  should  have  the 
object  so  expressed  in  the  calling,  warrant  or  notice 
that  the  inhabitants  of  the  district  may  fairly  under- 
stand the  purpose  for  which  they  are  convened.^  And 
the  mere  omission  of  a  punctuation  mark  will  not 
invalidate  a  notice  otherwise  clear.^  A  vote  on  a 
matter  of  business  not  referred  to  in  the  notice  of  a 
special  meeting  is  not  valid, ^  and  a  certified  copy  of 
such  vote  is  inadmissible  in  evidence.^  A  notice  to 
meet  for  the  purpose  of  obtaining  information  about 
an  assessment  of  property  in  the  district,  will  not 
include  the  appointment  or  employment  of  counsel.^ 

Where  at  an  annual  meeting  the  time  and  place  of 
the  next  annual  meeting  is  then  fixed,  it  is  not  necessary 
to  give  notice  of  the  time  and  place  of  such  next  meet- 
ing, and  a  meeting  held  at  such  time  and  place  with- 
out notice  will  be  valid.  ^ 

In  computing  the  length  of  time  during  which  notice 
of  a  meeting  of  a  school  district  was  given,  the  same 
rule  will  be  applied  as  in  the  case  of  service  of  process, 
in  that  either  the  day  on  which  the  notice  was  posted 
or  the  day  on  which  the  meeting  was  held  will  be 
counted.^    When  a  special  election  is  held  in  the  same 

1  South  School  District  v.  Blakeslee,  13  Conn.  227 ;  Peters  v. 
Warren  Township,  98  Mich.  54,  56  N.  W.  1051 ;  Bartlett  v.  Kinsley, 
15  Conn.  327. 

2  Merritt  v.  Farris,  22  111.  303. 

3  Passage  v.  Board,  &c.,  19  Mich.  330 ;  Little  v.  MerriU,  10  Pick. 
(Mass.)  543. 

^  Wilson  V.  Waltersville,  &c.,  44  Conn.  157. 

5  Wright  V.  North  School  District,  53  Conn.  576,  5  Atl.  708. 

^  Marchant  v.  Langworthy,  6  Hill  (N.  Y.)  646. 

^  Mason  v.  School  District,  &c.,  20  Vt.  487. 

47 


g  24]  OF  SCHOOL   DISTRICTS  [Ch.  II 

schoolhouse  of  a  district  where  the  previous  two  special 
elections  were  held,  the  validity  of  such  election  is 
not  impaired  by  the  fact  that  the  notice  thereof  did 
not  specify  the  place  at  which  it  would  be  held.^  And 
the  return  of  an  officer  that  he  had  warned  the  inhabi- 
tants of  the  town  is  sufficient  without  stating  the 
manner  in  which  he  warned  them.^ 

§  24.  Electors  and  Votes  of  District  Meeting. 

The  electors  of  a  school  district  are  usually  the  tax- 
payers of  either  poll  or  estate  taxes  or  both.  And 
one  who  is  merely  a  payer  of  poll  tax  is  of  equal  stand- 
ing with  those  who  pay  taxes  on  property.  If  the 
statute  provides  that  women  shall  be  eligible  to  vote 
on  all  school  measures  and  questions,  they  are  entitled 
to  vote  on  the  issue  of  bonds  for  school  purposes.^ 

Unless  otherwise  provided  by  statute,  the  voting 
at  a  school  district  meeting  may  be  by  ballot,^  and  a 
record  of  the  proceedings  of  school  district  meetings 
must  be  kept  by  proper  officers  and  in  the  form  pre- 
scribed by  statute.^  And  even  where  a  statute  pro- 
vides that  a  vote  of  a  school  district  to  acquire  lands 
for  school  purposes  shall  be  by  ballot,  such  require- 
ment is  directory  only,  and  a  vote  taken  by  showing 
of  hands  is  legal.  ^ 

1  Younts  V.  Union  County,  151  N.  C.  582,  66  S.  E.  575. 

^  Houghton  V.  Davenport,  23  Pick.  (Mass.)  435,  overruling  Perry 
V.  Dover,  12  Pick.  (Mass.)  206. 

^Stuessy  v.  LouisviUe,  156  Ky.  523,  161  S.  W.  564;  Olive  v. 
School  District,  &c.,  86  Neb.  135,  125  N.  W.  141. 

4  Chamberlain  v.  Board,  &c.,  57  N.  J.  L.  605,  31  Atl.  1033. 

5  Higgins  V.  Reed,  8  Iowa  298. 

<'  State  V.  Superior  Court,  69  Wash.  189,  124  Pac.  484. 

48 


Ch.  II]        ELECTORS  AND  VOTES  OF  MEETING        [§  24 

If  the  vote  of  a  school  district  be  fairly  taken  upon 
proper  notice,  it  is  not  invalid  for  the  reason  that  only 
a  minority  of  the  school  commissioners  is  present  in 
compliance  with  a  statute  imposing  upon  them  the 
duty  of  supervising  the  voting.^ 

A  required  majority  of  voters  of  a  school  district 
means  a  majority  vote  of  the  qualified  voters  present 
and  voting  at  a  district  meeting,  and  does  not  mean 
a  majority  of  all  qualified  voters  in  the  district.^ 

If  a  vote  to  levy  a  tax  is  decided  adversely  at  a 
district  meeting,  a  special  meeting  may  be  called  to 
act  thereon  at  which  meeting  favorable  action  may  be 
legally  taken.^  And  a  school  district  may  at  a  legal 
meeting  held  before  the  assessment  is  called,  rescind 
their  vote  to  levy  a  tax  passed  at  a  previous  meeting.^ 
But  after  a  tax  has  been  assessed  and  committed  to 
the  collector,  and  he  has  commenced  the  collection 
of  it,  the  vote  to  levy  may  not  be  reconsidered.^  And 
an  act  requiring  a  two-thirds  vote  to  pass  it,  cannot 
be  rescinded  by  a  bare  majority.^ 

Where  the  statute  provides  that  the  school  direc- 
tors shall  have  the  general  charge  and  superintendence 

1  Chiles  V.  Todd,  43  Ky.  126. 

2  Richardson  v.  McReynolds,  114  Mo.  641,  21  S.  W.  901 ;  Tucker 
V.  McKay,  131  Mo.  App.  728,  111  S.  W.  867;  Crandall  v.  Trustees, 
&c.,  51  N.  J.  L.  138,  16  Atl.  194 ;  Sanford  v.  Prentice,  28  Wis.  358. 
But  see,  School  District,  &c.,  v.  Oellien,  209  Mo.  464,  108  S.  W.  529. 

^  Trustees,  &c.,  v.  Lewis,  35  N.  J.  L.  377 ;  Stackhouse  v.  Clark, 
52  N.  J.  L.  291,  19  Atl.  462. 
^  Pond  V.  Negus,  3  Mass.  230. 

5  Mitchell  V.  Brown,  18  N.  H.  315 ;  Smith  v.  Dillingham,  4  Barb. 
(N.  Y.)  25. 

6  Stockdale  v.  Wayland,  &c.,  47  Mich.  226,  10  N.  W.  349. 

49 


§25]  OF   SCHOOL   DISTRICTS  [Ch.  II 

of  all  the  public  schools,  they  act  as  public  officers 
entrusted  with  certain  powers  and  are  charged  with 
corresponding  duties.  They  are  not  merely  agents 
of  the  town  in  which  the  school  is  located,  and  may 
disregard  any  vote  of  the  inhabitants  relating  to  their 
duties.  So  where  school  directors  in  good  faith  and 
in  the  exercise  of  good  judgment,  closed  a  school, 
there  being  other  adequate  schools  for  public  instruc- 
tion, a  vote  of  the  town  to  reopen  the  closed  school 
may  be  disregarded  by  the  school  directors.^ 

§  25.   Records  and  Minutes. 

Where  the  statute  makes  it  the  duty  of  the  secre- 
tary of  the  school  district  to  keep  all  records  of  the 
proceedings  of  the  board  and  district  meetings  in  sepa- 
rate books,  to  be  kept  for  that  purpose,  such  require- 
ments are  not  mandatory,  but  are  merely  directory. 
And  although  prudence  would  dictate  that  the  records 
be  so  kept,  the  fact  that  the  direction  of  the  statute 
was  not  followed,  but  the  records  were  kept  on  loose 
sheets,  variant  in  size,  will  not  make  the  proceedings 
void.^ 

Under  a  statutory  requirement  that  the  ayes  and 
nays  be  recorded,  it  is  not  necessary  to  so  record  an 
unanimous  vote,  but  it  is  sufficient  to  record  the  vote 
as  unanimous.^  And  where  the  statute  requires  the 
clerk  of  a  school  district  to  act  as  secretary  of  a  school 
meeting,  the  will  of  the  meeting  cannot  be  frustrated 

1  Morse  v.  Ashley,  193  Mass.  294,  79  N.  E.  481. 

^  Higgins  V.  Reed,  8  Iowa  298. 

3  Genessee,  &c.,  v.  McDonald,  98  Pa.  St.  444. 

50 


Ch.  II]  DISTRICT  CLAIMS  AND  ACTIONS  [§  26 

by  the  clerk's  refusal  to  act  as  secretary,  but  a  secre- 
tary pro  tern  may  be  appointed  whose  entries  will  be 
evidence  of  the  proceedings  of  the  meeting.^ 

A  clerk  of  a  school  district  has  a  right  to  amend  the 
minutes  so  that  they  will  conform  to  the  proceedings,^ 
but  he  has  not,  after  he  is  out  of  office  and  his  successor 
occupies  the  office,  the  right  to  amend  the  records  of 
the  district,^  nor  can  the  records  be  amended,  on  trial  of 
a  cause,  so  as  to  make  them  agree  with  the  decision  of 
a  court. ^ 

The  original  records  of  a  school  district  are  evidence 
of  its  proceedings,^  but  where  the  original  records 
have  been  lost  the  contents  may  be  proved  in  accordance 
with  the  usual  rules  of  evidence.^ 

§  26.   District  Claims  and  Actions. 

A  school  district,  by  statute  made  a  corporation, 
may  sue  in  any  court  of  the  State  having  competent 
jurisdiction.''  But  school  directors  have  no  implied 
authority  to  prosecute  or  defend  actions  out  of  the 
school  funds, ^  and  a  vote  of  a  district  for  its  prudential 
committee  to  "  look  into  the  rights  of  the  district  " 

1  State  V.  McKee,  20  Oreg.  120,  25  Pac.  292. 

2  Vaughn  v.  School  District,  &c.,  27  Oreg.  57,  39  Pac.  393 ;  Harris 
V.  School  District,  &c.,  28  N.  H.  58 ;  Hoag  v.  Durfey,  1  Aik.  (Vt.) 
286. 

3  Third  School  District  v.  Atherton,  12  Mete.  (Mass.)  105. 

4  Hadley  v.  Chamberlin,  11  Vt.  618. 

^  South  School  District  v.  Blakeslee,  13  Conn.  227 ;  WiUiams  v. 
School  District,  21  Pick.  (Mass.)  75 ;  Richardson  v.  Sheldon,  1  Pinn. 
(Wis.)  624.  "  Higgins  v.  Reed,  8  Iowa  298. 

7  Clarke  v.  School  District,  84  Ark.  516,  106  S.  W.  677. 

s  Hotclikiss  V.  Plunkett,  60  Conn.  230,  22  Atl.  535. 

51 


§  26]  OF  SCHOOL   DISTRICTS  [Ch.  II 

does  not  imply  authority  to  prosecute  an  action.^ 
Such  authority,  unless  given  by  statute,  can  be  given 
only  by  an  affirmative  vote  of  the  electors  of  a  district 
at  a  legally  called  meeting. 

A  school  district  at  its  annual  meeting  may  by  the 
lawful  vote  of  its  electors  recognize  and  pay  equitable 
claims,  although  they  are  not  strictly  legal  demands.^ 
And  if  the  law  makes  a  demand  necessary,  before 
bringing  suit  or  taking  other  steps  to  collect  the  claim, 
it  is  not  necessary  where  the  school  directors  have 
voted  not  to  pay  a  claim  that  has  not  yet  been  pre- 
sented to  them.  No  demand  is  then  necessary  before 
taking  such  other  action  as  the  law  gives  the  claimant.^ 

Where  a  school  board  is  made  a  body  corporate,  a 
suit  to  recover  in  favor  of  the  corporation  must  be 
brought  in  its  corporate  name.^  Likewise  a  suit  to 
recover  a  claim  against  the  district  must  be  brought 
against  it  in  its  corporate  name,  and  not  against  the 
individuals  comprising  the  board  of  trustees,  although 
describing  them  as  trustees.^ 

A  civil  and  a  school  township  are  in  some  States 
distinct  corporations  even  though  represented  by  the 
same  individual  officers,  and  bounded  by  the  same 
geographical  lines,  therefore  in  such  States  an  action 
not  showing  against  which  township  it  is  brought, 

^  Burgess  v.  School  District,  100  Mass.  132. 

2  Stockdale  v.  Wayland,  &c.,  47  Mich.  226,  10  N.  W.  349. 

^  Horton  v.  Ocheyedan,  49  Iowa  231. 

^  Stewart  v.  Thornton,  75  Va.  215 ;  Kingsley  v.  Plum,  &c.,  2 
Pa.  St.  28. 

^  Sproul  V.  Smith,  40  N.  J.  L.  314 ;  See  also,  Ex  parte  Collins, 
49  Ala.  69;  Shoudy  v.  School  Directors,  32  111.  290. 

52 


Ch.  II]  DISTRICT  CLAIMS  AND  ACTIONS  [§  26 

must  be  dismissed.^  And  where  the  civil  and  school 
townships  are  distinct,  an  action  against  the  "  trustee 
of  the  township  "  is  conclusively  presumed  to  be  against 
the  trustee  of  the  civil  township  and  not  of  the  school 
township.  2 

Although  an  injunction  generally  lies  to  restrain 
public  corporations  from  committing  threatened  acts 
in  violation  of  law,  and  their  duty,  it  has  been  held 
that  an  injunction  in  the  name  of  the  State,  on  the 
relation  of  the  Attorney  General  will  not  lie  to  restrain 
the  collection  of  taxes  levied  by  a  school  district  to 
pay  void  bonds  theretofore  issued.  The  reason  upon 
which  the  decision  was  grounded  being  that  the  State, 
as  such,  had  no  interest  in  the  subject  matter,  and  that 
each  taxpayer  could  protect  himself,  or  all  could  unite, 
to  prevent  a  multiplicity  of  suits,  in  a  single  bill  to 
restrain  the  collection  of  the  illegal  tax.^ 

The  statute  of  limitations  may  be  relied  on  as  a 
defense  in  an  action  against  a  school  district,^  but  a 
school  district,  by  vote  of  its  electors,  may  do  acts 
which  amount  to  a  promise  to  pay,  and  thereby  take 
a  debt  of  the  district  out  of  the  operation  of  the  statute 
of  limitations. 

If  there  is  within  the  borders  of  a  town  a  free  school 
of  equal  grade  with  a  high  school  although  not  within 
the  control  of  the  committee  on  public  schools,  and 


1  Jarvis  v.  Robertson,  126  Ind.  281,  26  N.  E.  182 ;  Utica  r.  Miller, 
62  Ind.  230. 

2  Teeple  v.  State,  171  Ind.  268,  86  N.  E.  49. 

3  State  V.  McLaughlin,  15  Kan.  228. 

"  Bank  of  Gallatin  v.  Baber,  74  Tenn.  273. 

53 


§26]  OF   SCHOOL   DISTRICTS  [Ch.  II 

not  supported  in  any  way  by  the  town  in  which  it  is 
located,  and  was  never  approved  by  the  State  Board 
of  Education,  an  inhabitant  of  that  town  cannot  re- 
cover from  the  town  the  cost  of  tuition  in  the  high 
school  of  another  town.^ 

Individual  members  of  a  school  district  made  a  body 
corporate,  have  no  right  to  appear  and  be  heard  in 
defense  of  an  action  against  the  district ;  ^  but  an 
execution  against  the  inhabitants  of  a  school  district 
may,  in  some  States,  be  levied  on  the  property  of  an 
individual  member  of  the  district,  and  may  be  so 
levied,  in  the  first  instance,  even  if  there  be  corporate 
property  of  the  district,  which  can  be  taken  and  ap- 
plied towards  satisfaction  of  such  execution.^  In  this 
respect  a  school  district  is  analogous  to  towns."*  But 
in  Texas  a  judgment  against  a  school  district  cannot 
be  enforced  by  execution,  mandamus  being  the  proper 
remedy.^ 

The  regularity  and  formation  of  a  school  district 
cannot  be  attacked  in  a  collateral  suit.^  And  where  a 
school  district  has  been  in  continued  existence  for  a 

1  Hurlburt  v.  Boxford,  171  Mass.  501,  50  N.  E.  1043. 

2  Lane  v.  Weymouth,  10  Mete.  (Mass.)  462. 

3  Gaskill  V.  Dudley,  6  Mete.  (Mass.)  546. 

^  McLoud  V.  Selby,  10  Conn.  390 ;  Chase  v.  Merrimac  Bank, 
19  Pick.  (Mass.)  564.     But  see,  Kenyon  v.  Clark,  2  R.  I.  67. 

5  CroweU,  &c.,  v.  First  Nat'l  Bk.,  163  S.  W.  (Tex.)  339. 

®  School  District,  &c.,  v.  School  District,  &c.,  45  Kan.  543, 
26  Pac.  43 ;  State  v.  Donahay,  30  N.  J.  L.  404 ;  Reynolds  v.  Moore, 
9  Wend.  (N,  Y.)  35;  Keweenaw  Association  v.  School  District,  &c., 
98  Mich.  437,  57  N.  W.  404;  Burnham  v.  Rogers,  167  Mo.  17, 
66  S.  W.  970 ;  State  v.  Central  Pac.  R.  Co.,  21  Nev.  75,  25  Pac.  296 ; 
Hamilton  v.  San  Diego  County,  108  Cal.  273,  41  Pac.  305 ;  Alderman 
V.  School  Directors,  91  111.  179.     But  see,  Orrick,  &c.,  v.  Dorton, 

54 


Ch.  II]  DISTRICT  TORTS  [§  27 

number  of  years  with  the  acquiescence  of  the  inhabit- 
ants therein  the  legahty  of  its  formation  will  be  pre- 
sumed without  resort  to  record.^ 

§  27.  District  Torts. 

A  private  action  cannot  be  maintained  against  a 
town  or  other  quasi  corporation  for  a  neglect  of  cor- 
porate duty,  unless  such  action  be  given  by  statute. 

This  rule  of  law,  however,  is  of  limited  application. 
It  is  apphed,  in  case  of  towns,  only  to  the  neglect  or 
omission  of  a  town  to  perform  those  duties  which  are 
imposed  on  all  towns,  without  their  corporate  assent, 
and  exclusively  for  public  purposes ;  and  not  to  the 
neglect  of  those  obhgations  which  a  town  incurs,  when 
a  special  duty  is  imposed  on  it,  with  its  consent,  express 
or  implied,  or  a  special  authority  is  conferred  on  it, 
at  its  request.  Consequently  a  town,  which  has 
assumed  the  duties  of  school  districts,  is  not  liable  for 
an  injury  sustained  by  a  scholar  attending  the  public 
school,  from  a  dangerous  excavation  in  the  schoolhouse 
yard,  owing  to  the  negligence  of  the  town  officers.^ 

A  municipal  corporation,  in  absence  of  an  express 
statute,  is  liable  for  negligent  injury  to  persons;  but 
a  quasi  corporation  being  liable  only  when  made  so 
by  statute,  such  corporate  bodies  as  school  districts, 

125  Mo.  439,  28  S.  W.  765;  Green  Mountain,  &c.,  v.  Savage,  15 
Mont.  189,  38  Pac.  940 ;  Thomas  v.  Gibson,  11  Vt.  607. 

1  Stevens  v.  School  District,  &c.,  30  Mich.  63 ;  Rice  v.  McClelland, 
58  Mo.  116;  Bowen  v.  King,  34  Vt.  156;  Presque  Isle  County  v. 
Thompson,  61  Fed.  914. 

2  Bigelow  V.  Randolph,  14  Gray  (Mass.)  541 ;  Sullivan  v.  Boston, 

126  Mass.  540. 

55 


§27]  OF   SCHOOL   DISTRICTS  [Ch.  II 

boards  of  education  and  other  quasi  corporations,  are 
not  impliedly  liable  for  the  wrongful  acts  and  negUgence 
of  its  officers  or  agents  in  maintaining  and  repairing 
school  buildings.^ 

School  boards  are  involuntary  quasi  corporations 
for  the  exercise  of  governmental  functions,  and  in 
absence  of  an  express  statute  imposing  Habihty  for 
negligence  are  not  Uable  for  acts  of  negligence.^  And 
a  school  district  is  not  liable  for  conversion  by  its  direc- 
tors,^ nor  for  negligence  in  providing  an  unsafe  convey- 
ance for  use  in  the  transportation  of  pupils."* 

A  school  district  organized  as  a  quasi  corporation, 
and  solely  for  the  public  benefit,  although  capable  of 
suing  and  being  sued  is  not  hable  for  the  trespasses, 
negligence,  and  other  torts  committed  by  its  officers 
unless  made  so  by  statute.^  They  have  no  funds  out 
of  which  to  pay  damages,  nor  have  they  the  power  to 
raise  money  by  taxation  or  otherwise  to  apply  to  such 

1  Dillon  on  Munic.  Corp.,  5th  ed.,  §§  38,  1658;  Hill  v.  Boston, 
122  Mass.  344;  Kinnare  v.  Chicago,  171  III.  332,  49  N.  E.  536; 
McNeil  V.  Boston,  178  Mass.  326,  59  N.  E.  810;  Ernst  v.  West 
Govin$;ton,  116  Ky.  850,  76  S.  W.  1089:  Bigelow  v.  Randolph, 
14  Gray  (Mass.)  541 ;  Clark  v.  Nicholasville,  27  Ky.  L.  Rep.  974, 
87  S.  W,  300;  Sullivan  v.  Boston,  126  Mass.  540;  Howard  v. 
Worcester,  153  Mass.  426,  27  N.  E.  11 ;  Wixon  v.  Newport,  13  R.  I. 
454 ;  Folk  v.  Milwaukee,  108  Wis.  359,  84  N.  W.  420.  But  see, 
Higbie  v.  New  York,  &c.,  122  N.  Y.  App.  Div.  483,  107  N.  Y.  S.  168. 

2  Kinnare  v.  Chicago,  171  lU.  332, 49  N.  E.  536 ;  Rock  Island,  &c., 
Co.  V.  Elliott,  59  Kan.  42,  51  Pac.  494 ;  State  v.  Board,  &c.,  94  Md. 
334,  51  Atl.  289 ;  Board,  &c.,  v.  Volk,  72  Ohio  St.  469,  74  N.  E.  646. 

3  McClure  v.  Tipton,  79  Mo.  App.  80. 

4  Harris  v.  Salem,  72  N.  H.  424,  57  Atl.  332. 

^  School  District,  &c.,  v.  Williams,  38  Ark.  454 ;  Freel  v.  Craw- 
fordsville,  142  Ind.  27,  41  N.  E.  312 ;  Ford  v.  KendaU,  &c.,  121  Pa. 
St.  543,  15  Atl.  812. 

56 


Ch.  II]  DISTRICT  TORTS  [§  27 

purposes.    Their  non-liability  is  the  same  as  that  of 
townships  and  counties.^ 

A  school  district  is  not  liable  for  the  injury  of  a 
pupil  by  reason  of  the  janitor  throwing  kerosene  oil 
on  a  fire ;  ^  injury  to  a  pupil  by  a  faUing  column  while 
repairs  were  being  made ;  ^  injury  to  a  teacher  from 
a  defective  floor/  or  other  injuries  caused  by  defective 
condition  of  premises,^  or  by  the  negligence  of  em- 
ployees/ So  where  a  school  district  was  sued  for  an 
injury  to  a  pupil  caused  by  two  small  stumps  on  the 
playground  which  caught  his  foot  and  resulted  in  such 
injury  that  an  amputation  of  the  leg  was  necessary, 
the  negligence  in  allowing  the  stumps  to  remain  there 
was  held  to  be  that  of  public  officers  in  relation  to  a 
pubUc  duty,  and  therefore  the  district  was  not  Uable.'' 
And  the  same  conclusion  was  reached  in  a  case  where 
a  school  committee  was  sued  for  damages  resulting  to 
a  party  on  a  highway  caused  by  the  falling  of  a  tree 
being  cut  down  by  proper  persons  employed  to  fell 
it  on  the  school  lot ;  ^  also  in  a  case  where  a  pupil  was 

^  Freel  v.  Crawfordsville,  supra  cit.;  Finch  v.  Toledo,  &c.,  36 
Ohio  St.  37 ;  Cones  v.  Benton,  &c.,  137  Ind.  404,  37  N.  E.  272. 

2  Ford  V.  Kendall,  &c.,  121  Pa.  St.  543,  15  Atl.  812. 

3  Erie,  &c.,  v.  Fuess,  98  Pa.  St.  600. 

4  Bassett  v.  Fish,  75  N.  Y.  303. 

5  Bank  v.  Brainerd,  &c.,  49  Minn.  106,  51  N.  W.  814 ;  Sullivan  v. 
Boston,  126  Mass.  540;  Lane  v.  Woodbury,  &c.,  58  Iowa  462, 
12  N.  W.  478 ;  Wixon  v.  Newport,  13  R.  I.  454 ;  Ham  v.  New  York, 
70  N.  Y.  459 ;  Katz  v.  Board,  &c.,  162  N.  Y.  App.  Div.  132,  147 
N.  Y.  S.  327. 

^  Howard  v.  Worcester,  153  Mass.  426,  27  N.  E.  11 ;  Donovan  v. 
McAlpin,  85  N.  Y.  185;  Wood  v.  Independent,  &c.,  44  Iowa  27. 

7  Bank  v.  Brainerd,  &c.,  49  Minn.  106,  51  N.  W.  814. 

8  McKenna  v.  Kimball,  145  Mass.  555,  14  N.  E.  789. 

57 


§  27]  OF  SCHOOL  DISTRICTS  [Ch.  II 

injured  by  falling  into  an  open  well  on  the  play- 
ground.^ 

But  where  the  board  of  education  selects  one  of  its 
members  as  an  agent  charged  with  the  separate  and 
distinct  duty  of  keeping  a  schoolhouse  in  repair,  he 
is  individually  liable  for  an  injury  caused  by  his  failure 
to  do  S0.2 

Where  the  statute  provides  that  an  action  of  tort 
may  be  maintained  against  a  school  district,  such 
district  is  liable  in  an  action  for  damages  caused  to  a 
pupil  by  the  overturning  of  a  receptacle  of  boiling 
water  negligently  kept  upon  a  register  in  the  middle 
of  the  schoolroom,  the  injured  pupil  being  rightfully 
in  attendance  at  the  school,  even  though  the  duty  to 
use  care  be  a  governmental  one.^  And  school  authori- 
ties are  liable  for  maintaining  a  flag  pole  in  an  unsafe 
condition  on  a  pubhc  school  building.^ 

A  school  district  may  maintain  an  action  for  tres- 
pass to  land  dedicated  for  school  purposes.^ 

1  Finch  V.  Toledo,  &c.,  36  Ohio  St.  37. 

2  Bassett  v.  Fish,  75  N.  Y.  303. 

3  Redfield  v.  School  District,  &c.,  48  Wash.  85,  92rPac.  770. 

4  McCarton  v.  City  of  New  York,  149  N.  Y.  App.  Div.  516,  133 
N.  Y.  S.  939. 

6  Morris  v.  School  District,  63  Ark.  149,  37  S.  W.  569. 


58 


CHAPTER   III 

OF  SCHOOL  PROPERTY 

§  28.   Power  to  Provide  Land  and  Buildings. 

A  schoolhouse  is  a  house  appropriated  for  the  use 
of  a  school  or  schools,  or  for  instruction,^  and  the  power 
to  provide  schoolhouses,  as  well  as  the  power  to  de- 
termine the  amount  necessary  to  defray  the  expenses 
incident  thereto,  is  primarily  in  the  school  district 
or  the  school  trustees. ^  And  any  agents  of  a  town, 
having  power  to  make  contracts  for  the  erection  of  a 
schoolhouse,  have  power  to  ratify  such  a  contract.^ 

When  a  district  has  power  to  erect  a  building  for 
school  purposes,  it  is  usual  to  exercise  the  authority 
through  the  school  directors  or  through  a  committee 
specially  appointed  for  that  purpose,  and  such  com- 
mittee when  legally  appointed  to  erect,  purchase,  or 
repair  a  schoolhouse  are  public  officers,  and  the  act 
of  the  majority  is  the  act  of  the  whole. ^ 

If  a  contract  for  the  erection  of  a  schoolhouse,  by 
reason   of  an   informahty,   is  voidable,   the   contract 

1  Webster's  Diet. 

2  Colt  V.  Roberts,  28  Conn.  330 ;  Sheldon  v.  Central  School  Dis- 
trict, 25  Conn.  224 ;  School  District,  &c.,  v.  Stough,  4  Neb.  357. 

^  Stevenson  v.  District,  &c.,  35  Iowa  462. 
4  Keyser  v.  District,  &c.,  35  N.  H.  477. 

59 


§28]  OF  SCHOOL  PROPERTY        [Ch.  in 

may  be  ratified,  and  the  acceptance  and  use  of  the 
building  by  the  district  will  operate  as  a  ratification, 
and  render  the  district  liable  to  the  contractor  for  the 
cost  of  the  building.^ 

If  the  owner  of  land  desired  for  school  purposes  gives 
an  unquahfied  refusal  to  sell  the  land  at  a  reasonable 
price,  the  land  may  be  taken  by  right  of  eminent 
domain  without  the  consent  of  owner  if  damages  are 
tendered  to  him.^  But  this  power  may  not  be  exercised 
without  notice  to  the  owner  of  the  land.^ 

If  the  district  neglect  or  refuse  to  act  in  providing 
rooms  for  school  purposes,  the  school  committee  are 
authorized  to  provide  rooms  and  employ  teachers  at 
the  expense  of  the  district.^ 

Where  the  school  directors  provide  schoolhouses 
that  are  comfortable  and  safe,  although  they  are 
unsightly,  cheap,  unfit  for  permanent  use,  and  hard  to 
keep  in  repair,  they  are  not  removable  for  neglect  of 
duty.^ 

If  schoolhouses  in  sparsely  populated  districts  are 
so  located  by  the  school  directors  that  the  longest 
distance  required  to  be  traveled  by  any  scholars  is 
slightly  more  than  two  miles,  the  exercise  of  their  dis- 

1  Keyser  v.  District,  &c.,  35  N.  H.  477 ;  Fisher  v.  School  District, 
&c.,  4  Cush.  (Mass.)  494 ;  Bellows  v.  District,  &c.,  70  Iowa  320, 
30  N.  W.  582 ;  Kimball  v.  School  District,  &c.,  28  Vt.  8 ;  Sullivan  v. 
School  District,  &c.,  39  Kan.  347,  18  Pac.  287. 

2  Cousens  v.  School  District,  &c.,  67  Me.  280 ;  Storer  v.  Hobbs, 
52  Me.  154 ;  Gibbons  v.  Southwest  School  District,  4  Allen  (Mass.) 
508;  True  v.  Melvin,  43  N.  H.  503. 

3  Eighth  School  District  v.  Copeland,  2  Gray  (Mass.)  414. 

4  Gilman  v.  Bassett,  33  Conn.  298. 

^  In  re  Ohio  Township  School  Directors,  9  Pa.  Co.  Ct.  392. 

60 


Ch.  Ill]  POWER  TO  PROVIDE  [§  28 

cretion  in  so  doing  is  not  cause  for  their  removal  ex- 
cept on  evidence  showing  want  of  good  faith  in  their 
acts.^ 

Where  the  school  board  takes  official  action  as  to  the 
number  of  schoolhouses  necessary  for  a  district,  but  fail 
to  provide  a  sufficient  number  of  buildings  for  school 
purposes,  they  cannot  be  removed  from  office  for  neglect 
of  duty,  such  matters  being  within  their  discretion. ^ 
Nor  will  the  court  remove  school  directors  for  neglect 
to  build  new  schoolhouses,  where  the  expense  would  be 
great,  and  the  township  is  already  deeply  in  debt.^ 
But  a  refusal  to  consider  a  request  of  citizens  for  en- 
larged school  accommodations  where  they  are  clearly 
needed  is  a  sufficient  cause  for  removal.^ 

The  school  authorities  in  their  discretion  may  ex- 
change buildings  between  white  and  colored  schools, 
and  the  effect  on  property  values  in  the  neighborhood 
cannot  qualify  their  right  to  exercise  their  discretion.^ 
And  where  the  statute  authorizes  the  board  of  directors 
to  obtain  at  the  expense  of  the  district  such  highways 
as  may  be  necessary  to  secure  access  to  a  schoolhouse, 
the  authority  is  not  limited  to  those  instances  where 
there  is  no  highway  already  existing  from  which  access 
may  be  had.^ 

Authority  to  purchase  a  site  and  erect  a  schoolhouse 
thereon,  may  incidentally  include  the  authority  to  pay  a 

1  Price  V.  Barrett,  &c.,  9  Pa.  Co.  Gt.  395. 

^  Snavely  v.  School  Directors,  1  Lane.  L.  Rev.  (Pa.)  9. 

^  In  re  Derry,  &c.,  2  Pear.  (Pa.)  24. 

*  In  re  Connoquenessing,  &c.,  9  Pa.  Co.  Ct.  425. 

5  Roberts  v.  Louisville,  &c.,  16  Ky.  L.  Rep.  181,  26  S.  W.  814. 

^  Bogaard  v.  Plain  View,  93  Iowa,  269,  61  N.  W.  859. 

61 


§  29]  OF   SCHOOL  PROPERTY  [Ch.  Ill 

broker's  commission  in  the  purchase  of  the  site.^  And 
it  is  within  the  powers  of  a  school  district  to  purchase 
land  on  which  to  construct  a  playground  for  the  children 
of  that  district,  even  though  such  course  includes  the 
erecting  of  a  gymnasium.^ 

§  29.   Acquiring  Site. 

School  districts  are  usually  empowered  by  statute 
to  determine  the  location  of  their  schoolhouses,  and  if 
the  inhabitants  cannot  agree  then  some  other  specified 
body  is  to  take  the  deciding  action.^  But  if  the  statute 
provides  that  a  location  must  be  designated  by  the  in- 
habitants in  a  district  meeting,  the  power  of  selection 
cannot  be  delegated.^  And  in  some  States  the  initial 
power  of  selection  is  in  a  special  body.^  The  location 
of  a  schoolhouse  being  subject  to  the  will  of  the  major- 
ity, may  be  changed  as  often  as  desired  in  absence  of  a 
prohibiting  statute .  ^ 

Where  the  location  of  a  schoolhouse  has  been  chosen, 
it  will  not  be  invalidated  by  failure  of  the  town  clerk 
to  make  due  record  of  the  matter,^  or  in  making  a 
mistake  in  the  recording  thereof.^  And  where  a  school 
district  has  no  authority  to  acquire  land  and  hold  it 

1  Board,  &c.,  v.  Mapes,  14  N.  Y.  St.  R.  593. 

^  Sorenson  v.  Christiansen,  72  Wash.  16,  129  Pac.  577. 

3  Bean  v.  Prudential,  &c.,  38  Vt.  177. 

*  Benjamin  v.  Hull,  17  Wend.  (N.  Y.)  437 ;  Farmers,  &c.,  v. 
School  District,  &c.,  6  Dak.  255,  42  N.  W.  767. 

^  Hughes  V.  Board,  &c.,  13  Ohio  336 ;  Carpenter  v.  Independent, 
&c.,  95  Iowa  300,  63  N.  W.  708. 

6  True  V.  Melvin,  43  N.  H.  503. 

7  Converse  v.  Porter,  45  N.  H.  385. 

8  Merritt  v.  Farris,  22  111.  303. 

62 


Ch.  Ill]  ACQUIRING  SITE  [§  29 

for  any  purpose  other  than  for  a  schoolhouse  site,  the 
school  directors  cannot  bind  the  district  to  pay  for  land 
acquired  for  such  other  purposes.  And  if  the  school 
directors  purchase  land  for  such  other  purposes,  and 
because  of  the  reversal  of  their  action  by  the  County 
Superintendent  the  title  never  vests  in  the  district  it 
is  not  bound  to  tender  a  reconveyance  in  order  to  main- 
tain an  action  to  recover  the  price  from  the  vendor. 
And  the  vendor  of  such  land  is  charged  with  notice  of  the 
limitation  of  the  authority  conferred  by  the  statute 
upon  such  directors.^ 

Where  a  question  of  selecting  a  particular  school- 
house  site  is  defeated  at  an  election  and  no  other  site  is 
selected,  the  question  of  selecting  the  same  site  may  be 
considered  at  a  new  election.^ 

A  pubhc  park  is  laid  out  for  sesthetic  considerations, 
and  therefore  there  is  no  right  unless  given  by  statute 
to  erect  a  schoolhouse  thereon,^  although  it  has  been 
held  that  such  building  may  be  erected  on  a  pubhc 
square.'* 

In  matters  affecting  the  pubhc,  the  plaintiff  must 
show  by  his  petition  that  he  will  suffer  some  special  dam- 
age not  conamon  to  the  public  or  he  cannot  maintain 
an  apphcation  for  a  writ  of  injunction.  Therefore  an 
injunction  to  restrain  a  school  board  from  removing 
a  schoolhouse  to  another  location  will  not  be  granted  if 
no  special  damage  to  the  plaintiff  is  alleged.^  But  where 

1  Independent,  &c.,  v.  McClure,  136  Iowa  122,  113  N.  W.  554. 

2  Trustees,  &c.,  v.  Kuhn,  261  111.  190,  103  N.  E.  553. 

3  Rowzee  v.  Pierce,  75  Miss.  846,  23  So.  307. 
*  Reid  V.  Edina,  &c.,  73  Mo.  295. 

5  Parody  v.  School  District,  15  Iowa  514,  19  N.  W.  633. 

63 


§30]  OF  SCHOOL  PROPERTY  [Ch.  Ill 

the  statute  provides  that  a  schoolhouse  can  be  removed 
from  that  locahty  only  upon  an  affirmative  vote  of  the 
electors  of  the  district,  its  removal  will  be  enjoined 
without  that  vote.^  And  in  an  action  to  enjoin  a  school 
district  from  changing  the  site  of  a  schoolhouse,  the 
plaintiff  must  allege  that  he  is  a  resident  taxpayer  and 
voter  in  the  district. ^ 

§  30.  Erecting  Schoolhouses. 

The  trustees  of  a  school  district  can  bind  the  district 
by  a  contract  to  build  a  new  schoolhouse,  only  when 
authorized  to  do  so  by  a  vote  of  the  electors  of  the  dis- 
trict.^ And  the  officers  of  a  school  district  have  no  dis- 
cretion as  to  building  a  schoolhouse,  when  the  district 
electors,  at  a  regular  meeting,  have  voted  to  issue  bonds 
and  from  the  proceeds  build  a  schoolhouse.  Such 
vote  is  an  instruction  which  must  be  obeyed."*  But  the 
vote  of  the  electors  of  a  district  at  a  meeting  called 
without  legal  notice,  that  decides  for  the  building  of  a 
schoolhouse,  gives  no  authority  to  issue  bonds  or 
award  contracts  for  that  purpose.^ 

The  performance  of  a  contract  by  a  board  of  directors 
to  employ  a  member  of  the  board  as  superintendent  of 
the  construction  of  a  school  building  for  a  compensation 
may  be  enjoined  by  a  taxpayer  of  the  district  without 

1  Graves  v.  Jasper,  &c.,  2  S.  D.  414,  50  N.  W.  904. 

2  Hess  V.  Dodge,  82  Neb.  35,  116  N.  W.  863.  See  also,  Tucker  v. 
McKay,  131  Mo.  App.  728,  111  S.  W.  867. 

3  School  District,  &c.,  v.  Brown,  2  Kan.  App.  309,  43  Pac. 
102. 

*  Schouweiler  v.  AUen,  17  N.  D.  510,  117  N.  W.  866. 

6  Austin  V.  Board,  &c.,  68  Misc.  Rep.  538,  125  N.  Y.  S.  222. 

64 


Ch.  Ill]  ERECTING  SCHOOLHOUSES  [§  30 

showing  fraud,  inasmuch  as  such  contract  is  void, 
and  any  compensation  paid  therefor  should  be 
returned  to  the  district.^  But  a  building  committee 
appointed  by  the  district  may  appoint  one  of  their 
number  to  superintend  the  erection  of  the  building 
for  a  compensation,  and  in  absence  of  fraud,  such  per- 
son may  recover  from  the  district  in  his  own  name  the 
amount  of  his  claim.^ 

In  contracting  with  a  committee  selected  to  erect 
a  schoolhouse,  the  party  is  bound  to  take  notice  of 
the  amount  which  the  coromittee  were  authorized  to 
spend  and  of  the  price  to  be  paid.^  But  it  has 
been  held  that  where  a  building  committee  are  ap- 
pointed by  a  district  to  superintend  the  erection  of 
a  schoolhouse  they"  are  agents  of  the  district,  and 
the  contractor  in  erecting  the  building  has  a  right 
to  rely  upon  the  pointing  out  of  the  location  by  the 
committee,  regardless  of  the  recorded  vote  of  the  dis- 
trict specifjdng  a  different  location  of  which  they  had 
no  knowledge."* 

A  suit  to  restrain  the  carrying  out  of  an  illegal  con- 
tract by  the  district  board  of  education  for  the  erection 
of  a  school  building,  may  be  maintained  by  a  corpora- 
tion which  is  a  taxpayer.^ 

If  a  school  board  is  authorized  to  construct  a  school 
building  in  the  first  instance,  they  may  make  a  new 

1  Weit  V.  Independent,  &c.,  78  Iowa  37,  42  N.  W.  577 ;  Currie  v. 
School  District,  &c.,  35  Minn.  163,  27  N.  W.  922. 

2  Jenkins  v.  Doughty,  &c.,  39  Me.  220. 

3  Turney  v.  Bridgeport,  55  Conn.  412,  12  Atl.  520. 
*  Baker  v.  School  District,  &c.,  46  Vt.  189. 

5  Toole  Bld'g.  Ass'n  v.  Toole,  &c.,  42  Utah  596,  134  Pac.  558. 

65 


§30]  OF   SCHOOL  PROPERTY  [Ch.  Ill 

contract  to  finish  a  building  where  the  first  contractor 
has  abandoned  it  and  gone  into  bankruptcy,  and  the 
board  of  estimates  should  again  sanction  the  expendi- 
ture.^ 

A  stipulation  in  a  contract  to  erect  a  school  building 
that  the  architect's  decision  shall  be  final  binds  both 
parties  in  the  absence  of  fraud,  gross  mistake,  or  bad 
faith.2 

In  some  cases  mandamus  and  injunction  are  correla- 
tive remedies,^  but  their  general  functions  are  distinct.^ 
Thus  it  has  been  held  that  injunction  and  not  mandamus 
is  the  proper  remedy  to  prevent  the  erecting,  by  the 
trustees,  of  a  schoolhouse  on  a  site  selected  in  violation 
of  law.  But  mandamus  was  held  the  proper  remedy  to 
compel  the  trustees  to  carry  out  the  decision  of  the 
superior  school  officer  in  relation  to  establishing  a 
schoolhouse  for  the  district.^ 

In  Georgia  a  municipal  corporation,  under  its  general 
powers,  may  build  a  schoolhouse,  without  express 
authority,  unless  its  charter  forbids.^ 

A  schoolhouse  is  not  liable  to  levy  and  sale  on 
execution;  nor  if  it  burns  down,  can  the  insurance 
money,  be  garnished  by  a  creditor.^ 

1  Holden  v.  Board,  &c.,  85  N.  J.  L.  370,  91  Atl.  990. 

2  Hatfield  v.  Knight,  112  Ark.  83,  164  S.  W.  1137;  Berger  M'f'g. 
Co.  V.  Crites,  178  Mo.  App.  218,  165  S.  W.  1163. 

3  Board,  &c.,  v.  McComb,  92  U.  S.  531,  23  L.  ed.  623. 

4  Smith  V.  Bourbon  County,  127  U.  S.  105,  32  L.  ed.  73,  8  S.  Ct. 
1043. 

^  Dillon  on  Munic.  Corp.  5th  ed.,  §  1482  n. ;  State  v.  Custer,  11 
Ind.  210. 

6  Cartersville  v.  Baker,  73  Ga.  686. 

7  Fleishel  v.  Hightower,  62  Ga.  324. 

66 


Ch.  Ill]  MECHANICS'   LIENS  [§  31 

§  31.   Mechanics'  Liens. 

A  mechanic's  lien  cannot  lie  against  a  building  which 
has  been  erected  by  a  city  for  school  purposes/  unless 
it  is  expressly  authorized  by  statute.^ 

Public  policy  forbids  the  extension  of  mechanics' 
liens  to  such  public  buildings  as  schoolhouses,  and  where 
a  mechanic's  lien  is  generally  created  by  statute  it 
cannot  be  enforced  against  public  school  property/  in- 
asmuch as  public  property  is  not  subject  to  such  lien 
except  when  expressly  made  so  by  statute.^  A  statute 
providing  for  the  creation  and  enforcement  of  a 
mechanic's  lien  on  "  any  building  "  does  not  authorize 
a  lien  on  a  public  school  building.^ 

Where  a  statutory  lien  is  given  to  all  persons  em- 
ployed upon  or  furnishing  materials  toward  the  per- 
formance of  any  public  work  or  "  public  improvement/' 
a  schoolhouse  is  a  public  improvement  within  the  mean- 
ing of  such  statute.^  And  where  the  statute  provides 
that  workmen  and  materialmen  of  a  contractor  for  a 
public  improvement  shall  have  a  lien  on  the  money  due 
the  contractor  from  the  municipality,  such  law  applies 


1  Staples  V.  Somerville,  176  Mass.  237,  57  N.  E.  380 ;  Lessard  v. 
Revere,  171  Mass.  294,  50  N.  E.  533. 

2  Western,  &c.,  v.  Board,  &c.,  39  Okla,  716,  136  Pac.  595 ;  Des 
Moines,  &c.,  v.  Plane,  163  Iowa  18,  143  N.  W.  866 ;  School  District, 
&c.,  V.  Graham, —  Okla., —  146  Pac.  213 ;  Aetna  Indemnity  Co.  v. 
Comer,  136  Ga.  24,  70  S.  E.  676 ;  Plmnmer  &  Davis  v.  School  Dis- 
trict, &c.,  92  Ark.  236,  118  S.  W.  1011 ;  Morganton,  &c.,  v.  Morgan- 
ton,  &c.,  150  N.  C.  680,  64  S.  E.  764. 

3  Minnetonka,  &c.,  v.  Board,  &c.,  41  Okla.  541,  139  Pac.  284. 

4  Barrett  M'f'g  Co.  v.  Board,  &c.,  133  La.  1022,  63  So.  505. 

5  National,  &c.,  v.  Huntington,  81  Conn.  632,  71  Atl.  911. 

«  Spalding  Lumber  Co.  v.  Brown,  171  111.  487,  49  N.  E.  725. 

67 


§32]  OF   SCHOOL  PROPERTY  [Gh.  Ill 

to  a  school  board  which  for  this  purpose  is  a  munici- 
pahty,  and  to  a  school  building  which  is  a  public  im- 
provement.^ 

§  32.   Contractors'  Bonds. 

The  law  regarding  the  rights  and  liabilities  in  re- 
spect to  the  bonds  taken  from  contractors,  and  con- 
ditioned to  complete  a  school  building  free  from 
mechanics'  liens,  or  free  from  indebtedness,  is  not  uni- 
form as  viewed  in  the  decisions  of  the  various  courts. 
Much  seems  to  depend  upon  the  wording  of  the  bond. 
Thus  in  Texas  it  has  been  held  that  even  without  being 
authorized  by  statute,  the  school  authorities  may  re- 
quire a  contractor  to  give  a  bond  for  the  payment  of  all 
debts  incurred,  and  a  laborer  or  materialman  may  sue 
thereon  in  his  own  name.^  While  in  the  same  State  it 
has  also  been  held  that  inasmuch  as  a  materialman 
could  not  acquire  a  lien  on  a  public  building  he  is  not 
entitled  to  sue  on  a  bond  given  by  a  contractor  con- 
ditioned to  complete  the  building  free  from  mechanics' 
liens.  And  a  school  district  made  a  party  to  such  suit 
has  no  right  to  be  reimbursed  for  attorney's  fees  ex- 
pended in  defending  such  suit.^ 

If  the  statute  requires  that  school  trustees,  before 
entering  upon  a  contract  for  the  erection  of  any  school 
building,  shall  exact  a  bond  conditioned  for  the  payment 
by  the  contractor  as  shall  become  due,  all  indebtedness 

1  Beardsley  v.  Brown,  71  111.  App.  199.  But  see,  Green  Bay- 
Lumber  Co.  V.  Odebolt,  125  Iowa  227,  101  N.  W.  84. 

2  N.  0.  Nelson  Co.  v.  Stephenson,  —  Tex.  Civ.  App.,  —  168  S. 
W.  61. 

3  Garrett  v.  McAdams,  &c.,  —  Tex.  Civ.  App.,  — 163  S.  W.  320. 

68 


Ch.  Ill]  CONTRACTORS'  BONDS  [§  32 

which  may  accrue  to  any  person  on  account  of  labor  or 
material  furnished  in  the  erection  of  such  buildings, 
their  functions  are  ministerial.  But  whether  ministerial 
or  judicial,  their  failure  to  take  such  bond  makes 
them  individually  liable  for  damages  to  the  material- 
man or  laborer,  individually,  injured  by  such  failure,^ 
and  neither  notice  nor  demand  is  necessary  to  the  cause 
of  action.-  Even  if  the  statute  does  not  require  that 
such  bond  be  taken,  a  trustee  is  not  inhibited  from 
exacting  it.^  And  if  such  bond  be  given  and  the 
materialman  not  duly  paid,  he  has  a  right  of  action  on 
the  bond.^ 

But  if  a  materialman  or  laborer,  knowing  that  such 
required  bond  has  not  been  given,  undertakes  to  furnish 
material  or  labor  relying  upon  the  credit  of  the  con- 
tractor who  subsequently  becomes  insolvent,  he  is 
estopped  to  claim  damages  from  the  trustees  for  failure 
to  exact  the  bond.^  And  it  has  been  held  that  where 
the  statute  requires  public  officers  to  take  from  a 
contractor  for  public  improvements,  a  bond  con- 
ditioned to  pay  all  indebtedness  for  labor  and  materials. 


1  Owen  V.  HiU,  67  Mich.  43,  34  N.  W.  649 ;  WeUs  v.  Board,  &c.,  78 
Mich.  260,  44  N.  W.  267 ;  Wilcox  Lumber  Co.  v.  School  District, 
106  Minn.  208,  118  N.  W.  794.  Contra:  Plumbing  Supply  Co.  v. 
Board,  &c.,  32  S.  D.  270,  142  N.  W.  1131 ;  Blanchard  v.  Burns,  110 
Ark.  515,  162  S.  W.  63. 

2  Staffon  V.  Lyon,  110  Mich.  260,  68  N.  W.  151. 

3  Williams  v.  Markland,  15  Ind.  App.  669,  44  N.  E.  562;  St. 
Louis,  &c.,  V.  Woods,  77  Mo.  197. 

*  N.  0.  Nelson  Co.  v.  Stephenson,  —  Tex.  Civ.  App.,  —  168  S.  W. 
61 ;  Baker  v.  Bryan,  64  Iowa  561,  21  N.  W.  83;  R.  Connor  Co.  v. 
Olson,  136  Wis.  13,  115  N.  W.  811. 

5  Owen  V.  Hill,  67  Mich.  43,  34  N.  W.  649. 

69 


§32]  OF   SCHOOL  PROPERTY  [Ch.  Ill 

one  furnishing  labor  or  materials  after  failure  to  take 
such  bond  is  chargeable  with  notice  that  none  had 
been  taken,  and  consequently  the  school  directors 
who  should  have  taken  such  bond  are  not  individually 
liable  to  one  furnishing  such  labor  or  materials  by 
reason  of  their  failure  to  take  such  bond;  nor  is  the 
district  liable.^ 

If  the  trustees  by  reason  of  their  failure  to  exact  a 
required  bond  designed  to  protect  materialmen  and 
laborers,  are  compelled  to  pay  such  indebtedness  by 
reason  of  their  failure,  the  amount  of  such  indebtedness 
paid  by  them  may  be  claimed  by  set-off  in  an  action 
brought  by  the  contractor  for  the  contract  price.^ 

If  such  bond  is  executed  as  required  by  statute,  ex- 
cept that  it  was  payable  to  the  board  of  education  in- 
stead of  the  State,  and  although  it  contained  a  condi- 
tion to  save  the  board  harmless  from  such  claims,  such 
persons  having  claims  for  labor  or  materials  may  re- 
cover on  the  bond.^  And  if  the  bond  taken  is  condi- 
tioned for  the  performance  of  the  work  and  that  the 
contractor  shall  furnish  the  material  used,  and  is  not 
conditioned  ''  to  pay "  the  materialmen,  it  affords 
no  protection  to  the  district  against  an  action  for  ma- 
terials furnished  the  contractor.'* 

Where  the  statute  requires  the  tribunal  transacting 
the  business  of  "  any  municipal  corporation  "  to  take  a 

1  Blanchard  v.  Burns,  110  Ark.  515,  162  S.  W.  63. 

2  Wells  V.  Board,  &c.,  78  Mich.  260,  44  N.  W.  267. 

3  Board,  &c.,  v.  Grant,  107  Mich,  151,  64  N.  W.  1050;  Wads- 
worth  V.  School  District,  &c.,  7  Wash.  485,  35  Pac.  371. 

^Puget  Sound,  &c.,  v.  School  District,  &c.,  12  Wash.  118,  40 
Pac.  608. 

70 


Cn.  Ill]  REPAIRS  AND  MAINTENANCE  [§  33 

bond  to  protect  against  claims  of  materialmen  and 
laborers,  school  districts  are  held,  for  this  purpose,  to  be 
municipal  corporations.^  And  such  statute  is  not  in 
conflict  with  a  constitutional  provision  which  provides 
for  a  general  and  uniform  system  of  public  schools,  and 
application  of  revenue  from  the  common  school  fund.^ 

Where  such  required  bond  is  not  taken  and  an  action 
is  brought  against  the  contractor,  the  judgment  secured 
therein  does  not  bar  an  action  against  the  school  district 
if  the  statute  does  not  require  that  the  district  be  made 
a  party  to  such  suit.^ 

The  object  of  filing  bonds  by  such  contractors  is  not 
to  give  the  bond  validity,  but  to  give  notice  to  interested 
persons.  Therefore  filing  the  bond  after  the  materials 
have  been  furnished  does  not  prejudice  the  plaintiff, 
if  it  actually  was  filed,  and  the  plaintiff  had  notice 
thereof  before  bringing  suit.^ 

§  33.   Alteration,  Repairs  and  Maintenance. 

Towns  and  cities  are  obliged  to  keep  school  property 
in  a  safe  condition,  and  are  liable  for  any  injury  caused 
by  the  unsafe  condition  of  the  premises,  provided  they 
have  knowledge  of  the  defect,  or  are  negligently  ignorant 
of  it.^  This  knowledge  or  notice  which  is  necessary 
to  impose  liability,  may  be  presumed  as  a  matter  of 

1  Maxon  v.  School  District,  &c.,  5  Wash.  142,  32  Pac.  110. 

2  Pacific  M'f'g  Co.  V.  School  District,  &c.,  6  Wash.  121,  33  Pac.  68. 
^  Pacific  M'f'g  Co.  V.  School  District,  &c.,  supra  cit. 

4  Wadsworth  v.  School  District,  &c.,  7  Wash.  485,  35  Pac.  371. 

s  Streator  v.  Chrisman,  182  111.  215,  54  N.  E.  997 ;  Whitney  v. 
Lowell,  151  Mass.  212,  24  N.  E.  47 ;  Parker  v.  Boston,  175  Mass. 
501,  56  N.  E.  569. 

71 


§33]  OF   SCHOOL  PROPERTY  [Ch.  Ill 

law  when  the  danger  is  great  and  manifest,^  or  it  may 
be  inferred  from  the  notoriety  of  the  defect.^ 

But  notice  to  the  janitor  of  a  schoolhouse,  who  is  law- 
fully appointed  by  the  school  committee,  that  a  highway 
is  in  a  defective  and  unsafe  condition, — for  example,  the 
uncovered  condition  of  a  coal  hole,  —  is  not  notice  to  the 
city.  Such  official  is  not  a  public  official  whose  duties 
are  to  attend  to  municipal  affairs,  being  appointed  by 
and  under  the  exclusive  control  of  the  school  committee, 
and  not  under  any  control  whatever  by  the  city.  What- 
ever may  be  their  duties  in  regard  to  the  care  of  school- 
houses  committed  to  their  charge,  they  have  none  in 
regard  to  the  repair  or  condition  of  the  public  ways.' 

A  school  committee  is  a  board  of  public  officers  whose 
principal  duties  are  prescribed  by  statute,  and  in  the 
execution  of  these  duties  the  members  do  not  act  as 
agents  of  the  town,  but  as  public  officers  in  the  perform- 
ance of  public  duties.  Besides  having  the  general 
charge  and  superintendence  of  all  the  public  schools  of 
the  town  the  statute  usually  delegates  to  them  the  care 
of  schoolhouses,  which  includes  the  grounds  on  which 
the  schoolhouses  are  erected.  In  pursuance  of  such 
duties  the  committee  may  lawfully  order  a  tree  on  the 
grounds  to  be  cut  down,  and  if  they  are  not  in  them- 
selves negligent,  they  are  not  responsible  for  the  negli- 
gence of  the  person  employed  to  do  the  work.     The 

1  Prideaux  v.  Mineral  Point,  43  Wis.  513 ;  McGrail  v.  Kalamazoo, 
94  Mich.  52,  53  N.  W.  955. 

2  Reed  v.  Northfield,  13  Pick.  (Mass.)  94 ;  Padelford  v.  Eagle 
Grove,  117  Iowa  616,  91  N.  W.  899. 

3  Foster  v.  Boston,  127  Mass.  290. 

72 


Ch.  Ill]  EXCLUSIVENESS  OF  USE  [§  34 

doctrine  of  respondeat  superior  is  founded  on  the  sup- 
posed benefit  to  the  master,  of  the  act  of  the  servant, 
and  does  not  apply  to  a  pubhc  officer  employing  agents 
in  the  discharge  of  a  public  duty.^ 

Where  the  statute  empowers  the  County  Superin- 
tendent with  authority  to  condemn  dilapidated  school 
buildings,  and  makes  it  the  duty  of  the  trustees  to 
repair  the  old  building  or  erect  a  new  one  when  notified 
by  the  superintendent  of  the  condemnation,  the  tax- 
payers of  the  district  cannot  question  the  decision  of 
the  County  Superintendent  and  the  trustees  as  to  the 
necessity  of  a  new  building.  And  the  trustees  may  act 
before  they  see  the  order  of  condemnation. ^ 

A  township  school  director  who  is  required  by  statute 
to  keep  in  due  order  and  condition  the  necessary 
schoolhouse  furniture,  it  being  further  provided  that 
his  expenses  shall  subsequently  be  audited  and  paid, 
is  not  entitled  to  have  the  money  advanced  to  him 
before  the  work  is  done.^  And  an  agent  authorized  by 
a  vote  of  a  school  district  to  expend  a  specified  percent 
of  the  school  funds  for  the  repair  of  a  schoolhouse,  is 
not  thereby  authorized  to  expend  a  greater  amount  al- 
though actually  needed  to  properly  repair  the  building.^ 

§  34.   Exclusiveness  of  Use. 

It  is  not  necessary  that  a  schoolhouse  be  erected  ex- 
clusively for  public  school  purposes.     And  it  has  been 

1  McKenna  v.  Kimball,  145  Mass.  555,  14  N.  E.  789 ;  NoweU  v. 
Wright,  3  AUen  (Mass.)  166 ;  Hill  v.  Boston,  122  Mass.  344. 

2  Trustees,  &c.,  v.  Jamison,  12  Ky.  L.  Rep.  719,  15  S.  W.  1. 

3  Hamtramck  v.  Holihan,  46  Mich.  127,  8  N.  W.  720. 
^  Davis  V.  School  District,  &c.,  24  Me.  349. 

73 


§34]  OF   SCHOOL   PROPERTY  [Cn.  Ill 

held  that  a  school  district  by  an  agreement  with  a 
builder  that  he  should  erect  for  a  certain  sum  a  school- 
house,  and  build  a  public  hall  over  the  same  to  be  his 
property,  he  allowing  the  district  to  have  the  use  of 
the  hall  for  various  purposes  connected  with  the  school, 
did  not  exceed  its  power. ^ 

The  purpose  for  which  school  districts  are  required 
to  build  schoolhouses,  is  to  accommodate  schools  which 
are  supported  by  the  district,  and  which  they  are  re- 
quired by  law  to  maintain.  But  the  general  object 
of  all  these  requirements  of  the  law  is  the  education  of 
children.^  Hence  it  has  been  held  that  a  private  school 
not  supported  by  a  tax  on  the  district,  might  by  con- 
sent of  the  district  be  held  in  the  schoolhouse,  that  such 
a  school  was  for  the  furtherance  of  the  general  object 
and  design  of  such  erections,  and  so  no  unlawful  use 
of  the  house,  and  that  the  committee  to  whom  by  law 
the  general  care  of  the  house  is  given,  had  no  legal  right 
to  prevent  the  house  being  used  for  that  purpose.  If 
the  district  might  properly  and  legally  allow  the  house 
to  be  used  for  such  purpose,  in  the  absence  of  any 
dissent  by  the  district,  the  committee  in  charge  might 
do  the  same,  and  give  permission  to  use  the  house  for 
the  same  object,  and  especially  if  it  was  generally  ap- 
proved by  the  voters  and  taxpayers  of  the  district.^ 

A  district  may  not  part  with  the  use  and  power  of 
control  over  the  schoolhouse  permanently,  nor  for  any 
such  length  of  time  as  to  prevent  the  building  from  being 

1  George  v.  Second  School  District,  6  Mete.  (Mass.)  497. 

2  Russell  V.  Dodds,  37  Vt.  497. 

3  Chaplin  v.  HiU,  24  Vt.  528. 

74 


Ch.  Ill]  EXCLUSIVENESS  OF  USE  [§  34 

used  for  the  purpose  of  a  district  school,  for  which  it 
was  specially  erected.  But  they  may  part  with  it  for 
such  limited  period  as  will  not  interfere  with  their 
legitimate  and  proper  use  of  it  as  a  district  schoolhouse. 
Therefore  it  was  held  that  if  a  committee  agree  to  let 
a  party  have  the  district  schoolhouse  for  a  private  school 
during  a  vacation,  and  the  party  enter  into  the  use 
thereof,  the  committee  cannot  revoke  the  agreement 
without  just  cause,  nor  can  the  want  of  authority  to 
make  the  agreement  be  alleged  in  defense  to  an  action 
by  the  lessee  for  exclusion  therefrom.^ 

The  only  remedy  given  a  taxpayer  against  the  illegal 
use  of  school  property  is  that  of  injunction,  and  this 
remedy  will  be  granted  though  the  injury  he  complains 
of  be  very  slight.  If  the  schoolhouse,  without  authority 
of  statute,  is  used  for  religious  purposes,  even  though 
by  vote  of  the  district,  such  use  is  illegal  against  the 
protest  of  a  single  taxpayer,  and  an  injunction  will  be 
granted  upon  application  of  such  taxpayer.^  But  a 
schoolhouse  is  not  constituted  a  place  of  worship  by 
holding  Sunday  school  or  religious  meetings  therein 
not  exceeding  four  times  a  year  and  then  not  interfering 
with  the  schoolwork.^ 

The  legislature  may  grant  to  religious  societies  the 
temporary  and  incidental  use  of  schoolhouses  for  reli- 
gious meetings  and  Sunday  schools,  and  such  statute 

1  RusseU  V.  Dodds,  37  Vt.  497. 

2  Schofield  V.  School  District,  27  Conn.  499 ;  Hurd  v.  Walters, 
48  Ind.  148 ;  Spencer  v.  School  District,  15  Kan.  259 ;  Bender  v. 
Streabich,  17  Pa.  Co.  Ct.  609;  Dorton  v.  Hearn,  67  Mo.  301; 
School  District,  &c.,  v.  Arnold,  21  Wis.  657. 

3  State  V.  Dilley,  95  Neb.  527,  145  N.  W.  999. 

75 


§34]  OF   SCHOOL  PROPERTY  [Ch.  Ill 

does  not  violate  the  constitutional  provision  that  no 
one  shall  be  compelled  to  support  a  place  of  worship, 
and  that  no  preference  shall  be  given  by  law  to  any 
religious  denomination,  or  mode  of  worship.^  And  the 
district  has  the  right  to  use  a  schoolhouse  for  any  dis- 
trict purposes ;  ^  or  for  educational  purposes  collateral 
to  the  main  purpose,  such  as  lectures,  debates,  or  by 
permitting  a  private  teacher  of  vocal  music  to  give 
instruction  in  his  art  in  the  district  schoolhouse,  out  of 
school  hours,  his  pupils  paying  him  a  compensation  • 
therefor.^ 

Against  trespassers  the  school  authorities  have  con- 
trol of  the  school  buildings  and  land  to  the  extent  of 
excluding  therefrom  any  person  who  enters  to  disturb 
the  peace  or  interferes  with  the  legitimate  purposes  of  the 
school.  But  they  have  no  right  arbitrarily  to  exclude 
any  one  of  their  own  caprice,  or  to  exclude  any  decorous 
person  from  a  school  entertainment  to  which  the  public 
are  invited."*  The  right  to  the  school  property  is  in 
the  district,  and  while  the  school  authorities,  by  impli- 
cation, have  the  right  to  occupy  the  schoolhouse  when 
used  for  school  purposes,  they  do  not  have  exclusive 
control  as  against  the  public,  that  is,  the  inhabitants 
of  the  district,  unless  it  is  given  to  them  by  statute.-^ 

Provided  such  use  does  not  interfere  with  the  school 
or  injure  the  building,  a  secret  society  may  legally  con- 

^  Nichols  V.  School  Directors,  93  111.  61 ;  Davis  v.  Boget,  50  Iowa 
11. 

2  Trustees,  &c.,  v.  Osborne,  9  Ind.  458. 
^  Appeal  of  Barnes,  6  R.  I.  591. 
4  Hughes  V.  Goodell,  3  Pittsb.  R.  264. 
6  Chaplin  v.  Hill,  24  Vt.  528. 

76 


Ch.  Ill]  PERSONAL  PROPERTY  [§35 

tract  for  the  use  of  a  public  school  building,  especially 
if  such  contract  is  approved  by  the  electors  of  the  dis- 
trict.^ But  a  schoolhouse  may  not  be  used  for  private 
dances  which  involve  the  removal  of  the  desks  there- 
from ;  -  nor  used  as  a  theatre,  or  for  the  performance 
of  theatricals  as  a  business.^  And  a  school  board  having 
only  such  powers  as  are  given  by  statute,  cannot  lease 
a  school  lot  for  production  of  oil  and  gas.* 

§  35.   Personal  Property. 

The  care  and  keeping  of  the  schoolhouse,  books,  ap- 
paratus and  other  property  of  the  district,  is  usually 
given  by  statute  to  the  school  board,  and  being  given  by 
statute  to  the  school  board  does  not  confer  upon  them 
the  right  to  purchase  new  property ;  and  especially 
not  a  safe  in  which  to  keep  their  records  which  are  of 
small  value.  ^  But  where  the  board  of  directors  have 
authority  to  provide  for  the  teaching  of  music,  the 
authority  is  imphed  to  purchase  a  musical  instrument 
for  that  purpose.^  Where  the  statute  places  the  entire 
control  of  the  district  schools  in  the  hands  of  the 
directors,  a  subdirector  has  no  authority  to  forbid  the 
use  of  apparatus  supplied  by  the  directors  in  the  schools 
within  his  care  on  the  ground  that  its  purchase  was 


1  Cost  V.  Shinault,  113  Ark.  19,  166  S.  W.  740. 

2  Lewis  V.  Bateman,  26  Utah  434,  73  Pac.  509. 

3  Sugar  V.  Monroe,  108  La.  677,  32  So.  961. 

4  Herald  v.  Board,  &c.,  65  W.  Va.  765,  65  S.  E.  102. 

s  Glidden,  &c.,  v.  School  District,  &c.,  143  Wis.  617,  128  N.  W. 
285. 

^  Bellmeyer  v.  Marshalltown,  44  Iowa  564 ;  Knabe  v.  Board,  &c., 
67  Mich.  262,  34  N.  W.  568. 

77 


§36]  OF   SCHOOL  PROPERTY  [Ch.  Ill 

illegal,  and  the  apparatus  worthless.  And  an  injunction 
will  lie  to  restrain  such  subdirector  from  preventing 
the  use  of  the  apparatus.^ 

Where  a  trustee  has  authority  to  bind  his  district 
by  a  contract  for  the  purchase  of  school  furniture,  the 
fact  that  unnecessary  articles  are  bought  under  a  fraudu- 
lent contract,  will  not  relieve  the  district  from  liability 
without  a  rescission  of  the  contract  by  offering  to  return 
the  articles  so  bought. ^ 

To  "  select "  means  to  choose  or  pick  out,  and 
"  provide  "  means  to  furnish  or  supply.  Consequently 
where  the  statute  provides  that  the  board  of  education 
shall  "select"  textbooks,  furniture,  and  educational 
appliances  for  the  schools,  and  that  the  school  board  of 
a  district  shall  "  provide  "  schoolhouses  with  proper 
furniture  and  appliances,  there  is  no  conflict  of  duty, 
and  the  school  board  has  no  authority  to  provide  school 
furniture  other  than  that  selected  by  the  board  of 
education.^ 

§  36.  Apparatus  and  Appendages. 

As  used  in  the  limitation  of  the  power  of  a  school 
board  to  purchase  for  school  use,  the  term  "  apparatus  " 
means  an  equipment  of  things  provided  and  adopted 
as  a  means  to  some  end,  and  includes  any  complex 
instrument  or  apphance  for  a  specific  action  or  opera- 
tion, such  as  a  mechanism  so  constructed  as  when 
operated  to  represent  the  relative  motions  of  the  earth 

1  District,  &c.,  v.  Meyers,  83  Iowa  688,  49  N.  W.  1042. 

2  Johnson,  &c.,  v.  Citizens  Bank,  81  Ind.  515. 

3  Com.  V.  School  Board,  &c.,  109  Va.  346,  63  S.  E.  1081. 

78 


Ch.  Ill]  APPARATUS  AND  APPENDAGES  [§  36 

and  moon  with  respect  to  each  other  and  the  sun,  and 
explain  the  various  phenomena  caused  by  such  motions, 
and  other  related  subjects.^ 

An  "  appendage  "  is  something  added  to  another 
thing  either  as  an  accessory  to,  or  a  subordinate  part 
of,-  even  though  not  necessary  to  it.^  In  general  it 
may  be  said  that  the  term,  as  used  in  connection  with 
schoolhouses,  applies  to  things  connected  with  the 
building,  or  designed  to  render  it  suitable  for  use  as  a 
schoolhouse,"*  and  has  been  held  to  include  a  well,^ 
fence,  "^  a  mathematical  chart,  ^  lightning  rods,^  brooms, 
pails,  cups,  fuel,  and  outhouses.^ 

The  purchase  of  "  necessary  appendages  "  for  the 
schoolhouse  as  authorized  by  statute,  does  not  include 
a  stereoscope  and  stereoscopic  views.  ^°  Nor  are  school 
charts  exhibiting  and  illustrating  matters  to  be  taught 
to  the  pupils,  to  be  classed  as  such.^^  But  a  mathemati- 
cal chart  may  be  deemed  either  apparatus  or  appendage.^^ 

1  Board,  &c.,  v.  Andrews,  51  Ohio  St.  199,  37  N.  E.  260. 

2  State  Treasurer  v.  Somerville,  &c.,  28  N.  J.  L.  26. 

3  State  V.  Fertig,  70  Iowa  272,  30  N.  W.  633 ;  In  re  Bozeman,  42 
Kan.  456,  22  Pac.  628. 

*  School  District,  &c.,  v.  Perkins,  21  Kan.  536. 

5  Hemme  v.  School  District,  &c.,  30  Kan.  377,  1  Pac.  104. 

6  Creager  v.  School  District,  &c.,  62  Mich.  101,  28  N.  W.  794. 

^  School  District  v.  Swayze,  29  Kan.  211.  A  mathematical  chart 
was  also  held  as  "apparatus"  in  School  District  v.  Swain,  29  Kan. 
152.     Contra:  Gibson  v.  School  District,  &c.,  36  Mich.  404. 

8  Monticello  Bank  v.  Coffin's  Grove,  &c.,  51  Iowa  350,  1  N.  W. 
592. 

^  Creager  v.  School  District,  supra  cit. ;  Hemme  v.  School  Dis- 
trict, supra  cit. 

^°  Bourbon,  &c.,  v.  Perkins,  21  Kan.  531. 

"  Gibson  v.  School  District,  &c.,  36  Mich.  404. 

12  School  District  v.  Swayze,  29  Kan.  211. 

79 


§  37]  OF  SCHOOL  PROPERTY  [Ch.  Ill 

And  a  fence  surrounding  the  schoolhouse  site  is  to  be 
classed  as  a  necessary  appendage.^ 

The  grading  and  fencing  of  a  schoolhouse  site,  pro- 
viding water  to  supply  the  school  even  to  the  extent  of 
digging  a  well,  and  the  equipping  of  the  schoolhouse 
with  school  furniture,  are  all  a  legitimate  part  of  the 
construction  of  a  schoolhouse,  and  the  proper  equip- 
ment of  school  property  as  authorized  by  a  vote  to 
purchase  a  site  and  erect  a  schoolhouse  thereon. ^  But 
whether  a  well  may  properly  be  supplied  under  a 
statutory  provision  that  the  district  board  shall  provide 
the  necessary  appendages  for  the  schoolhouse  during 
the  time  a  school  is  taught  therein,  is  a  question  of  fact 
for  a  Jury  to  decide.^ 

§  37.   Isolated  Territory. 

The  obligation  of  a  town  to  furnish  the  means  for 
educating  its  inhabitants  does  not  require  the  building 
of  a  schoolhouse  in  isolated  territory.  Consequently  a 
town  is  not  bound  to  build  and  maintain  a  schoolhouse 
on  a  small  island  within  its  territorial  limits  on  which 
a  few  persons  live  having  children  of  school  age.'*  And 
an  inhabitant  of  an  island  having  but  one  child  of  lawful 
school  age,  cannot  enforce  the  establishment  of  a  school 
upon  such  island,  there  being  a  sufficient  number  of 
public  schools  on  the  mainland,  although  the  State 
law  requires  children  of  such  age  to  attend  school.^ 

^  Creager  v.  Wright,  &c.,  67  Mich.  262,  34  N.  W.  568. 

2  Chamberlain  v.  Board,  &c.,  57  N.  J.  L.  605,  31  Atl.  1033. 

3  Hemme  v.  School  District,  &c.,  30  Kan.  377,  1  Pac.  104. 

4  Newcomb  v.  Rockport,  183  Mass.  74,  66  N.  E.  587. 

5  Davis  V.  Chilmark,  199  Mass.  112,  85  N.  E.  107. 

80 


Ch.  Ill]  SALOONS  AND  INTOXICANTS  [§  39 

§  38.   Offenses  Against  School  Property. 

To  burn  a  schoolhouse  cannot  be  arson  at  common 
law,^  but  is  within  a  statute  making  arson  extend  to 
the  burning  of  any  tobaccohouse,  warehouse,  storehouse 
or  "  any  other  house  or  houses  whatsoever",  ^  and  is 
also  made  arson  by  a  statute  providing  that  the  wilful 
burning  of  any  mill,  or  "  other  outhouse  not  parcel  of 
any  dwelling  house  "  in  that  a  schoolhouse  is  within 
this  description.^ 

An  action  of  trespass  may  be  maintained  by  school 
directors  who  are  in  actual  occupancy  of  a  schoolhouse, 
although  the  trustees  of  schools  hold  the  legal  title.^ 
But  such  action  may  not  be  maintained  by  the  inhabit- 
ants of  the  district,  inasmuch  as  they  have  no  estate 
in  the  property  of  the  district.^  And  where  an  expelled 
pupil  enters  a  schoolroom  and  refuses  to  leave  when 
requested  by  the  teacher,  such  pupil  is  guilty  of  "  loiter- 
ing "  on  public  school  grounds  under  a  statute  making 
such  loitering  an  offense.^ 

§  39.   Saloons  and  Intoxicants. 

Under  a  law  prohibiting  the  licensing  of  a  saloon  with- 
in four  hundred  feet  of  a  school  building  on  the  same 
street,  the  measurement  is  to  be  taken  from  the  nearest 
point  of  each  building  to  the  other,  whether  they  are 

^  Wallace  v.  Young,  44  Ky.  155. 

2  Ibid. 

3  Jones  V.  Hungerford,  4  Gill  &  J.  (Md.)  402.  See  also,  State  v. 
O'Brien,  2  Root  (Conn.)  516. 

"*  Alderman  v.  School  Directors,  91  111.  179 ;  School  District  v. 
Arnold,  21  Wis.  657. 

5  Chaplin  v.  Hill,  24  Vt.  528. 

« King  V.  State,  —  Tex.  Cr.  App.,  —  169  S.  W.  675. 

81 


§  39]  OF  SCHOOL  PROPERTY  [Ch.  Ill 

close  to  the  street  or  some  distance  away  from  it,  and 
even  though  but  one  room  in  the  building  is  used  for 
such  sale,  as  is  the  usual  arrangement  in  a  hotel  building.^ 
And  an  entrance  from  the  street  on  which  the  school  is 
located  to  the  place  where  the  intoxicants  are  sold  on 
another  street  may  bring  such  place  within  the  law.^ 

A  statute  prohibiting  the  sale  of  intoxicating  liquors 
in  certain  specified  localities,  is  not  unconstitutional 
because  its  application  is  not  general.^  And  therefore 
the  statute  may  authorize  a  court  to  make  an  order  pro- 
hibiting the  sale  or  giving  away  of  liquor  within  three 
miles  of  a  schoolhouse  on  petition  of  a  majority  of  the 
adult  residents  within  such  limit/ 

If  a  statute  prohibits  the  sale  of  intoxicating  liquor 
to  "  any  student  of  the  State  University,  or  of  any 
school,  college  or  academy",  such  prohibition  is  not 
confined  to  minors.^  And  if  the  statute  prohibits  such 
sales  to  "  any  minor  person,  pupil,  or  student,  while 
attending  school",  it  apphes  only  to  minors  who  are 
pupils  or  students  in  some  public  school,  seminary, 
academy,  or  other  institution  of  learning  within  the 
State.*'  For  this  purpose  a  writing  school  to  be  con- 
tinued for  twenty  days  only,  is  a  "  school  "  covered 

1  Com.  V.  Jones,  142  Mass.  573,  8  N.  E.  603. 

2  Com.  V.  Everson,  140  Mass.  434,  5  N.  E.  155. 

3  Howell  V.  State,  71  Ga.  224;  Town  of  Centreville  v.  Miller,  51 
Iowa  712,  2  N.  W.  527  ;  State  v.  Stovall,  103  N.  C.  416,  8  S.  E.  900 ; 
Heck  V.  State,  44  Ohio  St.  536,  9  N.  E.  305 ;  State  v.  Rauscher,  69 
Tenn.  96. 

4  Trammel  v.  Bradley,  37  Ark.  374 ;  Butler  v.  State,  89  Ga.  821, 
15  S.  E.  763. 

^  State  V.  Cooper,  35  Mo.  App.  532. 
6  State  V.  Richter,  23  Minn.  81. 

82 


Ch.  Ill]       CONVEYANCE   OF  SCHOOL  PROPERTY       [§  40 

by  the  statute.^  And  a  parochial  school  under  proper 
authorities  is  within  the  meaning  of  a  statute  excluding 
the  sale  of  intoxicating  liquors  within  two  hundred 
feet  of  a  school.^ 

§  40.    Conveyance  of  School  Property. 

A  deed  executed  in  good  faith  by  the  acting  treasurer 
of  the  ministerial  and  school  fund  of  a  town,  authorized 
by  an  order  of  the  acting  trustees  will  pass  a  good  title 
although  the  record  does  not  show  that  the  treasurer 
and  trustees  are  officers  de  jure  as  well  as  de  fado.^ 
But  a  deed  executed  by  the  treasurer  of  a  town,  as  such, 
and  by  a  majority  of  the  selectmen  of  the  town,  as  such, 
is  not  valid  where  the  statute  makes  the  selectmen, 
town  clerk,  and  treasurer,  for  the  time  being,  of  every 
town  in  the  State  a  body  corporate,  and  trustees  for 
the  ministerial  and  school  funds,  with  power  to  convey 
lands  belonging  to  such  funds.^ 

If  a  deed  merely  specifies  the  use  or  purpose  for  which 
the  land  is  granted  to  the  city,  as  "  for  school  purposes  ", 
the  purpose  expressed  does  not  qualify  the  estate  taken, 
but  simply  regulates  and  defines  the  use  for  which  the 
land  granted  shall  be  held.  The  specification  of  the 
purpose  is  not  construed  as  a  condition  subsequent,  and 
the  property  upon  a  discontinuance  of  the  use,  does  not 
revert  to  the  grantor  or  his  heirs.  ^    And  where  a  deed 

1  Farrell  v.  State,  32  Ala.  557. 

2  Rice  V.  Board,  &c.,  90  Atl.  (R.  I.)  419. 

3  Abbott  V.  Chase,  75  Me.  83. 

"  Warren  v.  Stetson,  30  Me.  231. 

5  Dillon  on  Mimic.  Corp.,  5th  ed.,  §  979 ;  Avery  v.  U.  S.,  104  Fed. 
711 ;  Warren  County  v.  Patterson,  56  111.  Ill ;  Stephens  v.  Murray, 

83 


§40]  OF  SCHOOL  PROPERTY  [Ch.  Ill 

conveying  real  estate  specifies  that  it  is  to  be  used  for 
school  purposes,  the  real  estate  itself  must  be  so  used, 
and  cannot  be  converted  into  money  to  be  used  for 
school  purposes.^  As  public  corporations  may  be  the 
object  of  private  bounty,  a  conveyance  of  land  to  a 
town  for  a  schoolhouse  site  is  based  upon  a  sufficient 
consideration. 2 

A  lease  of  school  lands  by  a  board  of  supervisors, 
under  a  statute  which  authorizes  such  lease  upon  petition 
of  a  majority  of  the  resident  heads  of  families,  is  void 
unless  the  records  of  the  board  show  that  such  petition 
was  made,  inasmuch  as  such  conferred  jurisdiction 
is  limited.^ 

Where  the  statute  provides  that  in  cities  beyond  a 
certain  population  no  sale  of  school  lands  shall  be  made 
except  by  the  city  council,  upon  the  written  request  of 
the  board  of  education,  such  matter  lies  within  the  dis- 
cretion of  the  board,  and  a  court  has  no  right  to  make 
an  order  to  the  mayor  and  comptroller  to  execute  a 
deed  and  take  a  mortgage  to  the  city.^ 

The  authority  of  a  school  district  to  sell  its  property 
is  to  sell  for  money,  and  not  to  barter  it.  Any  other 
form  of  sale  than  for  money  would  be  contrary  to  public 
policy.  Consequently  a  contract  to  purchase  school 
property  if  awarded  a  contract  for  a  school  building  is 

132  Mo.  468,  34  S.  W.  56 ;  Tifft  v.  Buffalo,  82  N.  Y.  204 ;  Coffin  v. 
Portland,  16  Greg.  77,  17  Pac.  580. 

1  Trustees,  &c.,  v.  Braner,  71  111.  546. 

2  Dillon  on  Munic.  Corp.,  5th  ed.,  §  981 ;  Castleton  v.  Langdon, 
19  Vt.  210 ;  Le  Couteulx  v.  Buffalo,  33  N.  Y.  333. 

3  Bolivar  County  v.  Coleman,  71  Miss.  832,  15  So.  107. 
^  People  V.  Roche,  124  lU.  9,  14  N.  E.  701. 

84 


Ch.  Ill]       CONVEYANCE   OF  SCHOOL  PROPERTY       [§  40 

invalid.^  But  where  a  schoolhouse  has  become  unfit 
for  the  use  of  the  district,  it  may  be  sold  by  the  school 
district,-  and  where  a  committee  is  authorized  by  vote 
of  the  district,  to  sell  the  schoolhouse,  it  must  be  sold 
for  cash,  a  sale  on  credit  being  void  unless  later  ratified 
by  the  district.^  If  a  sale  of  a  school  building  is 
rescinded  by  the  district,  on  the  ground  of  fraud,  the 
amount  paid  by  the  intending  purchaser  must  be 
refunded."* 

1  Caldwell  v.  Bauer,  179  Ind.  146,  99  N.  E.  117. 

2  Whitmore  v.  Hogan,  22  Me.  564. 

3  School  District,  &c.,  v.  Aetna,  &c.,  62  Me.  330. 

4  Ibid. 


85 


CHAPTER  IV 

OF  SCHOOL  OFFICERS 

§  41.   State  Superintendent. 

The  State  Superintendent,  or  School  Commissioner 
in  many  States  has  general  supervision  and  control  of 
schools,  school  officials,  and  school  funds. ^  This 
supervisory  power  usually  includes  the  power  of  re- 
moval of  officials,^  and  to  hear  and  determine  appeals 
from  subordinate  officers.^  But  the  power  to  deter- 
mine appeals  may  not  be  delegated  to  an  assistant.^ 

Where  the  legislature,  in  the  enactment  of  school 
laws,  has  created  a  series  of  tribunals  within  the  school 
officials  with  powers  to  settle  disputes  arising  in 
school  matters,  and  giving  appellate  jurisdiction  within 
such  tribunals  to  the  State  Superintendent,  his  decision 
thereon  has  the  conclusive  quality  of  a  judgment 
pronounced  in  a  legally  created  court  of  limited  juris- 

1  People  V.  Inglis,  161  111.  256,  43  N.  E.  1103;  Thompson  v. 
Board,  &c.,  57  N.  J.  L.  628,  31  Atl.  168 ;  People  v.  Skinner,  74  N.  Y. 
App.  Div.  58,  77  N.  Y.  S.  36 ;  State  v.  Daniel,  52  S.  C.  201,  29  S.  E. 
633.  2  gee  §  47^  infra. 

3  Field  V.  Com.,  32  Pa.  St.  478 ;  People  v.  Draper,  63  Hun  (N.  Y.) 
389,  18  N.  Y.  S.  282 ;  State  v.  Custer,  11  Ind.  210 ;  State  v.  Albert- 
son,  54  N.  J.  L.  72,  22  Atl.  1083;  Easton  v.  Calendar,  11  Wend. 
(N.  Y.)  90;  State  v.  Whitford,  54  Wis.  150,  11  N.  W.  424. 

*  Joint  School  District,  &c.,  v.  Wolfe,  12  Wis.  685, 

86 


Ch.  IV]  state  superintendent  [§  41 

diction  acting  within  the  bounds  of  its  authority,  and 
accordingly  upon  its  merits  is  not  reviewable/  although 
it  may  be  open  to  appeal  on  a  question  of  law.^ 

A  State  Superintendent  cannot  reverse  acts  of  dis- 
cretion. And  when  the  statute  gives  appellate  powers 
to  a  school  commissioner  to  hear  and  determine  appeals 
from  the  decisions  or  doings  of  school  committees,  dis- 
trict meetings,  trustees,  and  others,  taken  to  him  by 
persons  aggrieved  by  such  decisions  or  doings,  he 
acquires  from  such  statute  no  power  to  reverse  the 
majority  decision  of  the  school  committee  as  to  the 
location  of  a  schoolhouse  about  to  be  built  when  such 
decision  involves  no  violation  of  right.  A  grievance 
supposes  a  wrong  growing  out  of  some  infraction  of  law, 

1  Thompson  v.  Board,  &c.,  57  N.  J.  L.  628,  31  Atl.  168 ;  Park  v. 
Independent,  &c.,  65  Iowa  209,  21  N.  W.  567 ;  Wood  v.  Farmer, 
69  Iowa  533,  29  N.  W.  440 ;  People  v.  Collins,  34  How.  Pr.  (N.  Y.) 
336 ;  People  v.  Eckler,  19  Hun  (N.  Y.)  609 ;  State  v.  Whitford,  54 
Wis.  150,  11  N.  W.  424;  Appeal  of  Smith,  4  R.  I.  590. 

2  Watkins  v.  Huif,  94  Tex.  631,  64  S.  W.  682;  State  v.  Thayer, 
74  Wis.  48,  41  N.  W.  1014 ;  People  v.  Skinner,  159  N.  Y.  162,  53 
N.  E.  806.  There  is  no  distinction  in  point  of  conclusiveness  be- 
tween the  decisions  of  a  special  tribunal  such  as  a  State  Superin- 
tendent and  the  judgments  of  a  court  of  record.  The  sole  difference 
is  in  the  presumption  of  jurisdiction  that  inheres  in  general  courts 
alone.  If  the  right  of  the  special  tribunal  to  pass  on  the  matter  in 
controversy  between  the  parties  be  established,  its  determinations 
are  conclusive  upon  the  parties  until  reversed  by  some  appellate 
court.  As  a  general  rule,  whenever  any  person  is  given  authority  to 
hear  and  determine  any  question,  such  determination  is,  in  effect,  a 
judgment  having  all  the  properties  of  a  judgment  pronounced  in 
a  legally  created  court  of  limited  jurisdiction  acting  within  the 
bounds  of  its  authority;  Thompson  v.  Board,  &c.,  57  N.  J.  L.  628, 
31  Atl.  168.  When  the  law  admits  of  different  constructions  it  is 
well  settled  that  the  usage  under  it  and  the  practical  construction  of 
it  for  a  series  of  years,  is  entitled  to  great  weight,  and  sometimes 
may  be  decisive ;  Appeal  of  Cottrell,  10  R.  I.  615. 

87 


§  41]  OF   SCHOOL   OFFICERS  [Cn.  IV 

of  which  the  aggrieved  party  has  a  right  to  complain, 
and  the  statute  instead  of  throwing  the  discussion  and 
decision  of  such  complaints  before  the  ordinary  legal 
tribunals,  gives  an  appeal  to  the  commissioner  or  super- 
intendent of  public  schools  in  order  to  prevent  tedious 
litigation,  scandal  and  expense.  The  commissioner  is, 
from  a  legal  viewpoint,  a  visitor  of  the  public  schools 
of  the  State,  whose  speedy  and  noiseless  method  of 
settling  disputes  arising  between  the  different  officers 
and  members  of  the  school  body  is  designed  to  preserve 
that  peace  and  harmony  so  essential  to  its  well-being. 
He  may  decide  questions  involving  a  wrong  done,  but 
cannot  reverse  acts  of  discretion.  Any  other  construc- 
tion of  this  appellate  power  would  throw  every  dis- 
cretionary power  vested  by  law  in  the  school  officials 
into  his  hands,  since  upon  appeal  he  would  be  authorized 
to  revise  and  control  their  exercise  of  such  discretion.^ 

Where  appeal  to  the  Superintendent  of  Public  In- 
struction is  provided  as  a  remedy  for  one  who  is  ag- 
grieved by  a  decision  of  the  trustees  to  abolish  a  school 
and  consolidate  with  another,  such  appeal  is  a  neces- 
sary one,  even  though  it  cannot  be  taken  in  time  to 
secure  the  benefit  of  the  school  fund,  inasmuch  as  an 
injunction  might  issue  to  prevent  use  of  the  funds 
pending  the  appeal.^  And  where  the  statute  provides 
that  one  aggrieved  by  the  action  of  a  school  board  may 
appeal  to  the  County  Superintendent,  and  from  him 
to  the  Superintendent  of  Public  Instruction,  such  ap- 
peal is  the  proper  course  for  one  aggrieved  at  the  action 

1  Appeal  of  Gardiner,  4  R.  I.  602. 

2  McCoUum  V.  Adams,  110  S.  W.  (Tex.)  526. 


Ch.  IV]  STATE  SUPERINTENDENT  [§  41 

of  the  school  board  in  relocating  a  schoolhouse,  and  an 
injunction  will  not  be  granted.^ 

Although  the  State  Superintendent  of  Schools  has 
the  power  to  remove  from  office  a  County  Superintend- 
ent for  neglect  of  duty,  incompetency,  or  immorality, 
there  must  be  charges  filed,  notice  given,  opportunity 
for  presenting  a  defense,  and  a  hearing  must  be 
given.  2 

Where  the  statute  does  not  specify  a  method  of 
voting,  the  election  of  a  State  Superintendent  may  be 
either  viva  voce  or  by  ballot.^  And  where  the  school 
trustees  meet  on  the  day  specified  by  statute  for  the 
purpose  of  electing  a  superintendent,  and  continue  in 
session  and  to  ballot  until  he  is  elected,  the  fact  that  he 
is  not  elected  until  after  midnight  will  not  render  the 
election  invalid.^ 

It  is  against  public  policy,  and  consequently  illegal, 
for  a  member  of  a  board  of  trustees  to  vote  for  himself 
for  the  position  of  Superintendent  of  Schools.^  And 
inasmuch  as  the  result  of  the  ballot  expresses  the  elec- 
tion, it  is  not  necessary  that  an  elected  official  be  de- 
clared elected.* 

A  school  superintendent  need  only  receive  a  majority 
of  the  votes  cast,  and  it  is  not  necessary  that  he  receive 

1  Kinney  v.  Howard,  133  Iowa  94,  110  N.  W.  282 ;  Field  v.  School 
District,  &c.,  83  Kan.  186,  109  Pac.  775. 

*  Field  V.  Com.,  32  Pa.  St.  478.     See  also,  §  47,  infra. 

'  Johnson  v.  De  Hart,  72  Ky.  640 ;  State  v.  Kikoy,  86  Ind. 
118. 

*  State  V.  Vanosdal,  131  Ind.  388,  31  N.  E.  79. 

6  Hornung  v.  State,  116  Ind.  458,  19  N.  E.  151. 
8  People  V.  Stone,  78  Mich.  635,  44  N.  W.  333. 

89 


§  42]  OF   SCHOOL   OFFICERS  [Ch.  IV 

a  favorable  vote  of  a  majority  of  all  directors  present 
at  the  meeting.^ 

Where  the  statute  allows  "  actual  traveling  ex- 
penses "  to  a  superintendent  of  public  instruction  while 
making  his  official  visits  to  schools  in  his  charge,  hotel 
bills  incurred  by  him  are  not  a  part  of  such  expenses.^ 
And  when  the  compensation  of  a  State  Superintendent 
of  public  instruction  is  fixed  by  statute  not  to  exceed 
a  specified  amount,  with  another  fixed  sum  for  his 
traveling  expenses,  and  still  another  fixed  sum  for  clerk 
hire,  such  officer  has  no  right  to  appropriate  all  these 
sums  without  incurring  the  expenses  as  contemplated.^ 
A  statute  giving  the  State  Superintendent  authority  to 
disburse  a  fund  for  clerical  assistance  in  the  examina- 
tion of  teachers'  papers  does  not  by  such  authority 
make  him  the  owner  of  the  fund/ 

Where  the  statute  requires  that  suits  instituted  by 
the  Superintendent  of  Education  shall  be  through  the 
Attorney  General  or  proper  district  attorney,  a  suit 
brought  by  him  through  a  private  attorney  will  be  dis- 
missed.^ 

§  42.   County  Superintendent. 

A  County  Superintendent  of  public  instruction  can 
exercise  only  such  powers  as  are  specially  granted  by 
statute  or  are  necessarily  implied  to  carry  them  into 

1  Attorney  General  v.  Bickford,  77  N.  H.  433,  92  Atl.  835.  But 
see,  State  v.  Matson,  97  Neb.  746,  151  N.  W.  304. 

2  State  V.  La  Grave,  23  Nev.  88,  42  Pac.  797. 

3  State  V.  Cunningham,  82  Wis.  39,  51  N.  W.  1133. 

4  State  V.  Stockwell,  23  N.  D.  70,  134  N.  W.  767. 
6  Fay  V.  Jumel,  35  La.  An.  368. 

90 


Ch.  IV]  COUNTY  SUPERINTENDENT  [§  42 

effect.^  The  record  of  his  proceedings  must  show  that 
he  has  jurisdiction  or  his  acts  will  be  void.  He  has 
no  authority  to  purchase  and  pay  for  lands  for  school 
purposes  without  special  authority.^  And  if  a  County 
Superintendent  is  no  longer  able  or  fit  to  perform  the 
duties  of  his  position,  he  may  be  dismissed.^  Not  merely 
good  character,  but  good  reputation  is  essential  to  the 
greatest  usefulness  in  such  a  position  as  that  of  superin- 
tendent of  schools.  Therefore  one  against  whom  an 
indictment  for  a  crime  involving  moral  turpitude  has 
been  returned  may  be  dismissed  for  the  good  of  the 
schools  even  though  the  accused  is  not  found  guilty 
on  the  indictment.^ 

Where  by  statute  the  County  Superintendent  is  al- 
lowed certain  fees  in  connection  with  duties  performed 
in  his  office  in  Heu  of  a  salary,  a  large  discretion  is  vested 
in  him  as  to  the  duties  to  be  performed,  and  neither  the 
county  commissioners  nor  the  courts  have  a  right  to 
interfere  except  upon  abuse  of  his  discretion  or  in  case 
of  errors  apparent  from  inspection  or  established  by 
proof. -^  Among  such  items  held  proper  charges  are : 
official  correspondence  with  teachers,  school  officers 
and  others  pertaining  to  school  affairs  ;  holding  teachers' 
examinations ;  examining  into  a  complaint  that  a 
teacher  would  not  allow  certain  children  to  attend 

1  Ratcliff  V.  Faris,  G  Neb.  539. 

2  Board,  &c.,  v.  Billings,  15  Fla.  686. 

3  Hufford  V.  Conover,  139  Ind.  151,  38  N.  E.  328 ;  People  v.  Mays, 
17  111.  App.  361 ;  State  v.  Crumbaugh,  26  Tex.  Civ.  App.  521, 
63  S.  W.  925 ;  Freeman  v.  Bourne,  170  Mass.  289,  49  N.  E.  435. 

*  Freeman  v.  Bourne,  170  Mass.  289,  49  N.  E.  435. 
6  Smith  c.  Jefferson,  &c.,  10  Col.  17,  13  Pac.  917. 

91 


§42]  OF   SCHOOL   OFFICERS  [Ch.  IV 

school ;  and  visits  to  the  State  Superintendent ;  ^  but 
not  for  rendering  reports  to  the  bureau  of  statistics. ^ 

And  where  the  statute  provides  that  the  County 
Superintendent  shall  receive  such  pay  for  his  services 
as  may  be  allowed  him  by  the  county  court  the  matter  is 
one  of  unlimited  discretion  for  the  court,  whether  it 
fixed  the  salary  in  advance,  or  left  the  allowance  to  be 
determined  after  the  duties  were  performed ;  and  the 
decision  of  the  court  is  final. ^  Where  the  legislature  has 
fixed  the  salary  of  a  County  Superintendent  at  a  speci- 
fied sum,  and  the  board  after  his  election  fixes  it  at  a 
smaller  sum  he  may  receive  the  small  sum,  giving  a 
receipt  therefor,  and  still  not  be  estopped  from  recover- 
ing the  balance  of  his  salary.^ 

The  County  Superintendent  belongs  to  the  executive 
department  of  the  government ;  he  acts  in  neither  a 
judicial  nor  quasi-judicial  capacity  in  licensing  persons 
to  teach,  and  he  has  a  discretion  on  the  subject  of 
licensing  teachers,  which  is  so  far  analogous  to  judicial 
discretion  that  he  is  protected  from  any  claim  for 
damages  on  account  of  any  mistake  in  his  decisions,  or 
error  in  judgment,  either  in  granting  or  withholding  a 
license.  Yet  he  is  liable  in  damages  for  maliciously 
withholding  a  license  to  teach  from  an  applicant 
lawfully  entitled  to  receive  the  same,  and  he  will  be 
held  to  have  acted  maliciously  where  he  acts  either 
from  wilful  and  wicked  or  from  corrupt  motives.^ 

»  Smith  V.  Jefferson,  &c.,   10  Col.  17,  13  Pac.  917. 

2  Yeager  v.  Gibson  County,  95  Ind.  427. 

3  Haile  v.  Young,  74  Tenn.  501. 

4  Clarke  v.  Milwaukee  County,  53  Wis.  65,  9  N.  W.  782. 
6  Elmore  v.  Overton,  104  Ind.  548,  4  N.  E.  197. 

92 


Ch.  IV]  COUNTY  SUPERINTENDENT  [§  42 

TMiere  a  County  Superintendent  writes  to  the  State 
Superintendent  that  an  apphcant  for  a  certificate  to 
teach  is  not  of  good  moral  character,  he  is  in  no  better 
position  than  any  other  citizen  who  is  interested  in  the 
welfare  of  the  public  school  system.  Such  statement 
made  in  good  faith,  based  on  reasonable  information, 
and  not  actuated  by  express  malice,  is  privileged.^ 

The  acceptance  by  a  town  commissioner  of  the  office 
of  County  Superintendent  operates  ipso  facto  to  vacate 
the  office  of  commissioner,  and  he  is  not  thereafter  either 
a  de  jure  or  de  facto  holder  of  that  office.^  And  where 
the  statute  provides  that  certain  qualifications  are 
necessary  to  make  a  person  eligible  to  an  office,  such  as 
that  of  County  Superintendent,  one  who  does  not 
possess  such  qualifications  at  the  time  of  election,  but 
possesses  them  at  the  time  of  his  induction  into  office, 
is  sufficiently  qualified.^ 

WTiere  the  statute  allows  an  appeal  from  the  school 
board  to  the  County  Superintendent  it  does  not  give 
him  judicial  powers.'*  That  officer  can  only  give  opinion 
and  advice.  He  cannot  decide  the  controversy  so  as 
to  bind  the  parties,  it  being  the  power  of  the  State 
Superintendent  to  try  disputed  matters  and  judicially 
decide  them.^ 

A  County  Superintendent  is  not  Hable  for  his  ofiicial 

1  Tanner  v.  Stevenson,  138  Ky.  578,  128  S.  W.  878 ;  Barry  v. 
McCollom,  81  Conn.  293,  70  Atl.  1035. 

2  Whitehead  v.  Pittman,  165  N.  C.  89,  80  S.  E.  976. 

3  Bradfield  v.  Avery,  16  Idaho  769,  102  Pac.  687. 
^  Sioux  City  v.  Pratt,  17  Iowa  16. 

5  Buren  v.  Albertson,  54  N.  J.  L.  72,  22  Atl.  1083 ;  Fitch  v.  Smith, 
57  N.  J.  L.  526,  34  Atl.  1058.     See  also,  §  41,  supra. 

93 


§43]  OF   SCHOOL   OFFICERS  [Ch.  IV 

acts,  unless  they  were  wanton  and  malicious,  where 
he  has  a  discretion  in  their  performance.^ 

§  43.    School  Directors.2 

If  the  law  requires  the  election  of  a  school  board 
within  thirty  days  after  the  organization  of  a  district, 
such  law  in  the  absence  of  fraud  is  directory  only.^ 
And  at  an  election  of  school  trustees,  if  certain  irregulari- 
ties occur,  such  as  changing  the  location  of  the  polling 
place,  which  are  not  shown  to  have  changed  the  result, 
the  election  will  not  thereby  be  invalidated.'* 

The  statutory  provision  that  school  officers  shall  be 
elected  by  ballot  is  mandatory ;  but  where  at  a  regular 
meeting  such  officers  are  unanimously  elected  by 
viva  voce  vote,  no  other  person  claiming  to  have  been 
elected,  have  qualified  and  assumed  the  office,  they  will 
not  be  ousted  by  proceedings  quo  warranto.^  And  the 
officers  of  a  school  district  hold  their  offices  until  their 
successors  are  elected  or  appointed.'' 

New  members  of  a  school  board  enter  upon  their 
duties  as  soon  as  the  term  of  their  predecessors  expire, 

1  Branaman  v.  Hinklc,  137  Ind.  496,  37  N.  E.  546. 

2  The  terms  "School  Directors",  "School  Board",  "Board  of 
Education",  "School  Committee",  "School  Trustees",  and  other 
terms  of  local  usage  as  applied  to  the  persons,  collectively,  in  whom 
the  legislature  has  placed  the  management  of  public  schools,  as 
used  herein,  are  synonymous. 

3  People  V.  Crossley,  261  111.  78,  103  N.  E.  537. 

4  Simmons  v.  People,  119  111.  617,  9  N.  E.  220. 

5  Roeser  v.  Gartland,  75  Mich.  143,  42  N.  W.  687. 

6  Walker  v.  Miner,  32  Vt.  769  ;  Rowell  v.  School  District,  59  Vt. 
658,  10  Atl.  754 ;  Attorney  General  v.  Burnham,  61  N.  H.  594 ; 
School,  &c.,  V.  Powner,  126  Ind.  528,  26  N.  E.  484;  State  v.  Fagan, 
42  Conn.  32. 

94 


Ch.  IV]  SCHOOL  DIRECTORS  [§  43 

and  they  are  then  entitled  to  participate  in  the  organiz- 
ing of  the  new  board. ^  In  deciding  their  terms  of  office 
the  casting  of  lots  to  determine  their  respective  terms, 
by  trustees  of  a  school  district  legally  elected  and 
quahfied,  is  not  illegal.- 

Even  in  the  same  State  it  is  sometimes  provided  that 
larger  school  districts  elect  a  board  of  education,  while 
the  smaller  ones  are  governed  by  the  district  com- 
mittees.^ 

School  directors,  or  trustees,  their  powers  and  duties 
having  been  derived  exclusively  from  statute,  can 
exercise  no  powers  other  than  those  expressly  granted, 
or  such  as  are  clearly  implied  from  such  granted  powers.'* 
If  they  exercise  powers  and  functions  which  the  statute 
does  not  confer  upon  them,  they  are  responsible  for  all 
losses  that  may  ensue.-^  Being  public  officers  they  are 
subject  to  the  same  rules  as  other  public  officers  in 
respect  to  their  implied  powers ;  and  such  powers  will  be 
implied  only  when  the  exercise  thereof  is  necessary 
to  the  performance  of  other  duties  imposed  upon  them 
by  the  statute.^ 

All  persons  dealing  with  school  officers  are  presumed 
to  have  full  knowledge  of  the  limitations  of  the  powers 
of  such  officers  to  bind  their  corporations,  and  the  limit 
of  the  powers  of  a  school  board  must  be  recognized  by 

1  Appeal  of  Royce,  1  Walk.  (Pa.)  215. 

2  McGinnis  v.  Board,  &c.,  32  Ky.  L.  Rep.  1289,  108  S.  W.  289. 

3  Hassett  v.  Carroll,  85  Conn.  23,  81  All.  1013. 

4  Crawford  v.  District,  &c.,  68  Oreg.  388,  137  Pac.  217;  Baxter 
V.  Da\as,  58  Oreg.  109,  112  Pac.  410. 

8  Adams  v.  State,  82  111.  132. 

6  A.  H.  Andrews  Co.  v.  Delight,  &c.,  95  Ark.  26,  128  S.  W.  361. 

95 


§43]  OF   SCHOOL   OFFICERS  [Ch.  IV 

those  contracting  with  them.^  Persons  dealing  with  a 
school  board  are  also  chargeable  with  notice  of  a  valid 
by-law  adopted  by  them.^ 

In  so  far  as  directors  and  trustees  act  within  their 
authority,  their  contracts  are  binding.^  But  school 
|directors  have  no  right  to  bind  either  themselves  or 
their  successors  by  any  contract  which  shall  relieve 
them  from  the  official  duty  and  responsibility  which 
they  owe  to  the  people  whom  they  represent.^ 

A  board  of  school  directors  are  public  officers  whose 
duties  are  defined  by  statute.^  Being  of  statutory 
creation  they  are  only  entitled  to  such  compensation 
for  the  performance  of  their  prescribed  duties  as  are 
fixed  by  statute.^  Therefore,  a  board  of  directors 
have  no  authority  to  employ  one  of  their  number  to 
oversee  the  completion  of  a  schoolhouse  abandoned  by 
the  contractor,  and  bind  the  district  for  payment,  nor 

1  Slattery  v.  School,  &c.,  43  Ind.  App.  58,  86  N.  E.  860;  State 
V.  Freed,  10  Ohio  Cir.  Ct.  294. 

2  Montenegro-Riehm  Music  Co.  v.  Board,  &c.,  147  Ky.  720,  145 
S.  W.  740. 

3  Bloomington,  &c.,  v.  National  School,  &c.,  107  Ind.  43,  7  N.  E. 
760 ;  State  v.  Freed,  10  Ohio  Cir.  Ct.  294 ;  Rutledge  v.  McCue, 
10  Kulp  (Pa.)  57 ;  Adams  v.  State,  82  lU.  132 ;  Knabe  v.  Board,  &c., 
67  Mich.  262,  34  N.  W.  568. 

4  Wood  V.  Medfield,  123  Mass.  545 ;  Peers  v.  Board,  &c.,  72  111. 
508 ;  Seeger  v.  Mueller,  133  111.  80,  24  N.  E.  513 ;  Union  School 
District,  &c.,  v.  Crawfordsville,  &c.,  102  Ind.  473,  2  N.  E.  194; 
Wright  V.  Rosenbloom,  52  N.  Y.  App.  Div.  579,  66  N.  Y.  S.  165 ; 
Honaker  v.  Board,  &c.,  42  W.  Va.  170,  24  S.  E.  544 ;  Conley  v. 
School  Directors,  32  Pa.  St.  194 ;  Crawford  v.  District,  &c.,  68  Oreg. 
388,  137  Pac.  217. 

^  Ogden  V.  Raymond,  22  Conn.  379 ;  Sherlock  v.  Winnetka,  68  111. 
530. 

6  Upton  V.  County  of  Clinton,  52  Iowa  311,  3  N.  W.  81. 

96 


Ch.  IV]  SCHOOL  DIRECTORS  [§  43 

can  such  trustee  recover  from  the  district  for  such  ser- 
vices rendered.^  And  the  powers  given  to  the  school 
officers  by  statute  cannot  be  taken  from  them  by  a 
vote  of  the  district,  as  for  example,  the  power  to  provide 
board  for  the  teachers. ^ 

A  school  trustee  in  the  discharge  of  his  duties  is  a 
special  agent  whose  powers  are  limited,  and  it  is  in- 
cumbent upon  those  who  undertake  to  deal  with  him  in 
that  capacity,  to  ascertain  whether  he  is  acting  within 
his  authority.^  But  a  school  trustee  is  more  than  an 
agent  of  the  district  he  represents.  He  is  a  public 
officer  and  holds  fiduciary  relations  with  his  district.'* 

Where  the  law  gives  the  district  board  full  control 
over  the  schools  of  the  district,  the  power  to  appoint  a 
superintendent  of  schools  is  incident  thereto.^  But 
power  to  appoint  a  superintendent  of  music  is  not  to  be 
implied.^ 

School  boards  have  no  authority  to  offer  rewards  for 
detection  and  punishment  of  crime.''  And,  in  absence 
of  statutory  authority,  a  school  board  has  no  authority 
to  discipline  its  employees  by  the  imposition  of  a  fine.^ 

*  Moore  v.  Independent,  &c.,  55  Iowa  654,  8  N.  W.  631. 

2  School  District,  &c.,  v.  Currier,  45  N.  H.  573. 

3  Union,  &c.,  V.  First  Nat'l  Bank,  102  Ind.  464,  2  N.  E.  194  ; 
Bloomington,  &c.,  v.  National,  &c.,  107  Ind.  43,  7  N.  E.  760;  Mest 
V.  School  District,  &c.,  2  Woodw.  (Pa.)  257 ;  Roland  v.  Reading, 
&c.,  161  Pa.  St.  102,  28  Atl.  995.  But  see,  Wlieeler  v.  Alton,  &c., 
66  N.  H.  540,  23  Atl.  89. 

*  Axt  V.  Jackson,  &c.,  90  Ind.  101 ;  Wheeler  v.  Alton,  &c.,  66 
N.  H.  540,  23  Atl.  89. 

5  Stuart  V.  Kalamazoo,  30  Mich.  69 ;  Spring  v.  Wright,  63  111.  90. 

«  Perot  V.  Philadelphia,  11  Phila.  181. 

^  Luchini  v.  Police  Jury,  126  La.  972,  53  So.  68. 

8  FarreU  v.  Board,  &c.,  67  Misc.  Rep.  187,  122  N.  Y.  S.  289. 

97 


§43]  OF   SCHOOL   OFFICERS  [Ch.  IV 

School  directors  may  become  criminally  liable,  as  where 
two  or  more  members  of  a  school  board  agree  together 
to  exact  from  a  school  teacher  a  sum  of  money  in  con- 
sideration of  a  contract  of  employment  to  teach  in  a 
public  school ;  and  such  agreeing  together  is  unlawful 
and  constitutes  the  crime  of  conspiracy.^ 

Where  the  city  charter  confers  upon  the  board  of 
education  the  power  to  enact  rules  for  the  conduct  of 
their  proceedings,  no  authority  is  thereby  given  to 
change  a  rule  of  the  charter. ^  And  where  a  statute  of 
a  State  is  in  conflict  with  a  by-law  of  a  board  of  educa- 
tion, the  statute  prevails.^  But  the  provisions  of  a 
city  charter,  providing  that  vacancies  shall  be  filled 
by  the  council  of  the  city,  and  which  consolidates  the 
city  and  town,  controls  over  the  provisions  of  a  general 
statute  which  provides  that  vacancies  pertaining  to 
public  schools  shall  be  filled  by  the  school  committee.^ 
And  a  school  board  acting  under  a  special  charter, 
upon  a  repeal  thereof,  cannot  constitute  a  de  facto 
board  under  another  act.^ 

A  disputed  claim  may  be  compromised  by  the  pru- 
dential committee  as  the  general  financial  agent  of  the 
district.^  He  may  also  furnish  wood  to  the  district 
on  his  own  account  and  collect  a  reasonable  price  for  it.' 

If  a  district  without  a  schoolhouse  vote  not  to  build 

1  Bundy  v.  State,  95  Ark.  460,  130  S.  W.  522. 

2  Malloy  V.  Board,  &c.,  102  Cal.  642,  36  Pac.  948. 

3  People  V.  Van  Siclen,  43  Hun  (N.  Y.)  537. 

4  State  V.  Hatch,  82  Conn.  122,  72  Atl.  575. 

5  People  V.  Welsh,  225  111.  364,  80  N.  E.  313. 

6  Norton  v.  Tinmouth,  &c.,  37  Vt.  521. 
'  Ibid. 

98 


Ch.  IV]  SCHOOL  DIRECTORS  [§  43 

one,  such  vote  does  not  discharge  the  school  directors 
from  their  duty  to  estabhsh  and  maintain  a  free  pubHc 
school  in  such  district.^  And  where  a  legislative  act 
imposes  a  fine  upon  a  board  of  directors  who  fail  to 
perform  certain  duties,  such  act  is  not  to  be  construed 
so  as  to  impose  a  penalty  on  a  director  who  has  done 
his  duty.2 

A  board  of  education  may  appoint  a  member  as  an 
agent  to  secure  a  lease  of  land  for  school  purposes.^ 
And  the  appointment  of  an  agent  by  an  incorporated 
State  Board  of  Education  need  not  be  under  seal.^ 

Any  liability  created  by  the  wrongful  action  of  a 
school  board,  by  statute  made  a  body  corporate,  is 
against  the  corporation  and  not  against  the  individual 
members.^  But  where  the  school  directors,  or  clerk  of 
the  board,  commit  a  tort  in  entering  upon  the  school 
records  the  reason  for  dismissing  a  teacher,  the  district 
is  not  liable  therefor.^ 

To  enjoin  school  directors  at  the  suit  of  a  mere  tax- 
payer it  must  be  shown  that  an  injury  to  his  property 
rights  has  been  sustained  or  threatened ;  otherwise 
an  injunction  will  not  lie.^ 

A  school  officer  may  not  at  the  same  time  hold  more 
than  one  public  office,  and  the  offices  of  postmaster  and 
school  trustee  being  incompatible,  consequently  can- 

1  School  Directors  v.  People,  186  111.  331,  57  N.  E.  780. 

2  Com.  V.  Herr,  39  Pa.  Super.  Ct.  454. 

3  Board,  &c.,  v.  Harvey,  70  W.  Va.  480,  74  S.  E.  507. 
*  Board,  &c.,  v.  Greenbaum,  39  111.  009. 

5  Foster  v.  Reynolds,  66  Misc.  Rep.  133,  123  N.  Y.  S.  273. 
«  Wiest  V.  School  District,  &c.,  68  Oreg.  474,  137  Pac.  749. 
'  Lagow  V.  HiU,  143  111.  App.  523,  87  N.  E.  369. 

99 


§44]  OF   SCHOOL   OFFICERS  [Ch.  IV 

not  be  held  by  the  same  person,^  and  the  acceptance  of 
an  incompatible  office  operates  ipso  facto  to  vacate  the 
office  theretofore  held.^ 

§  44.   Must  Act  as  Unit. 

A  school  board,  by  statute  made  a  body  corporate, 
must  act  as  a  unit,  in  the  manner  prescribed  by  statute 
or  common  law,  as  a  board  convened  for  the  transac- 
tion of  business,  by  a  majority  vote,^  and  an  act  of  the 
minority  is  not  sufficient.^  But  a  maj  ority  may  lawfully 
do  official  acts,  especially  after  a  refusal  of  a  minority 
to  act  with  them ;  ^  although  a  majority  of  the  board 
acting  separately  and  as  individuals  cannot  so  act  as 
to  make  a  contract  on  behalf  of  the  board,  nor  direct 
the  issuance  of  an  order  to  pay  it.^ 

Where  the  statute  provides  for  the  joint  action  of  two 
officials,  neither  of  them  may  act  alone.  ^     But  a  quorum 

1  Johnson  v.  Sanders,  131  Ky.  537,  115  S.  W.  772. 

2  Whitehead  v.  Pittman,  165  N.  C.  89,  80  S.  E.  976. 

^  Herrington  v.  District,  &c.,  47  Iowa  11 ;  State  v.  Leonard,  3 
Tenn.  Ch.  177 ;  Lee  v.  Parry,  4  Denio  (N.  Y.)  125 ;  Keeler  v.  Frost, 
22  Barb.  (N.  Y.)  400;  American  Heating,  &c.,  v.  Board,  &c.,  81 
N.  J.  L.  423,  79  Atl.  313 ;  Cook  v.  Wliite,  &c.,  33  Ky.  L.  Rep.  926, 
111  S.  W.  686 ;  Byrne  &  Read  v.  Board,  &c.,  140  Ky.  531,  131  S.  W. 
260;  Lamaster  v.  Wilkerson,  143  Ky.  226,  136  S.  W.  217. 

4  People  V.  Smith,  149  111.  549,  36  N.  E.  971 ;  State  v.  Treasurer, 
&c.,  22  Ohio  St.  144. 

5  Kingsbury  v.  Centre  School  District,  12  Mete.  (Mass.)  90; 
Schofield  V.  Watkins,  22  111.  66 ;  McCoy  v.  Curtice,  9  Wend.  (N.  Y.) 
17. 

^  State  V.  Treasurer,  &c.,  22  Ohio  St.  144 ;  Pennsylvania,  &c.,  v. 
Board,  &c.,  20  W.  Va.  360;  Honaker  v.  Board,  &c.,  42  W.  Va.  170, 
24  S.  E.  544;  Cary  Library  v.  Bliss,  151  Mass.  364,  25  N.  E.  92; 
Morville  v.  Fowle,  144  Mass.  109,  10  N.  E.  766. 

7  State  V.  School  District,  &c.,  22  Neb.  48,  33  N.  W.  480. 

100 


Ch.  IV]  DISCRETION  AND  GOOD  FAITH  [§  45 

of  a  board  may  take  any  action  that  the  whole  board 
might  take,  unless  the  statute  otherwise  provides.^ 

A  school  district  is  not  bound  by  the  acts  of  an  indi- 
vidual member  of  the  board  who  does  not  act  by 
authority  of  the  board. ^  And  a  contract  by  five  of  the 
nine  members  of  a  school  board  who  act  independently 
of  each  other  is  not  binding  on  the  district  unless  rati- 
fied ;  ^  they  can  bind  the  district  only  when  they  con- 
vene and  act  together  as  a  board. ^  Nor  do  casual 
conversations  among  the  members  of  a  school  board 
bind  the  district.  Binding  action  can  be  taken  only  at 
a  regular  or  special  meeting.^  Although  if  all  are  pre- 
sent they  may  take  official  action  even  though  the  meet- 
ing is  not  formally  called.^ 

§  45.   Discretion  and  Good  Faith. 

In  the  performance  of  the  duties  imposed  by  law  upon 
school  directors  they  must  exercise  judgment  and  discre- 
tion. This  discretion  will  not  be  disturbed  by  the 
courts,  and  relief  will  be  given  only  when  their  action 
is  capricious,  arbitrary  or  shows  bad  faith  tantamount 
to  fraud.  ^ 


'  Trustees,  &c.,  v.  Brooks,  163  Ky.  200,  173  S.  W.  305. 

2  Markey  v.  School  District,  &c.,  58  Neb.  479,  78  N.  W.  932 ; 
Kane  &  Co.  v.  School  District,  &c.,  5  Kan.  App.  260,  47  Pac.  561. 

3  Richards  v.  School,  &c.,  132  Iowa  612,  109  N.  W.  1093. 

4  School  District,  &c.,  v.  Jackson,  110  Ark.  262,  161  S.  W.  153; 
Ryan  v.  Humphries,  150  Pac.  (Okla.)  1106. 

^  Armstrong  v.  School  Directors,  &c.,  160  111.  App.  430. 

«  Butler  V.  Windsor,  155  Wis.  626,  145  N.  W.  180. 

^  WiUiams  v.  Board,  &c.,  81  Kan.  593,  106  Pac.  36 ;  Wilson  v. 
Board,  &c.,  233  111.  464,  84  N.  E.  697 ;  Jeffries  v.  Board,  &c.,  135 
Ky.  488,  122  S.  W.  813;  State  v.  District,  &c.,  135  Wis.  619,  116 

101 


§  45]  OF   SCHOOL  OFFICERS  [Ch.  IV 

What  rules  and  regulations  will  best  promote  the 
interests  of  the  schools  under  their  immediate  control, 
and  what  branches  shall  be  taught,  and  what  text- 
books shall  be  used,  are  matters  usually  left  to  the 
determination  of  the  directors,  and  must  be  settled  by 
them  from  the  best  lights  they  can  obtain  from  any 
source,  keeping  always  in  view  the  highest  good  of  the 
whole  schools.  Good  order  can  only  be  obtained  by 
enforcing  discipline,  and  that  power  is  largely  com- 
mitted to  the  directors.  They  have  the  power  of  sus- 
pension and  expulsion,  and  they  may  exercise  that 
power  as  a  means  of  discipline  for  the  causes  men- 
tioned in  the  statute,  or  implied  from  the  powers  given 
them. 

The  expulsion  or  suspension  of  a  pupil  from  the  bene- 
fits and  privileges  of  the  school  for  what  is  considered 
incorrigibly  bad  conduct,  implies  deliberation  and  de- 
cision on  the  part  of  the  directors,  or  as  it  is  sometimes 
expressed,  they  act  judicially  in  a  matter  involving  dis- 
cretion in  relation  to  the  duties  of  their  office.  And 
a  declaration  against  the  directors  of  a  public  school 
for  improperly  exercising  their  duties  is  subject  to  a 
demurrer  if  it  does  not  state  that  they  acted  either 
wantonly  or  maliciously. 

This  rule  is  certainly  a  reasonable  one.  A  mere  mis- 
take in  judgment,  either  as  to  their  duties  under  the 
law,  or  as  to  the  facts  submitted  to  them,  ought  not  to 
subject  such  officers  to  an  action.     They  may  judge 

N.  W.  232;  State  v.  Board,  &c.,  122  Tenn.  161,  121  S.  W.  499; 
Cross  V.  Board,  &c.,  33  Ky.  L.  Rep.  472,  110  S.  W.  346 ;  Venable  v. 
School,  &c.,  149  N.  C.  120,  62  S.  E.  902. 

102 


Ch.  IV]  QUALIFYING  OF  OFFICERS  [§  46 

wrongly,  and  so  may  a  court  or  other  tribunal,  but  the 
party  complaming  can  have  no  action  when  such  officers 
act  in  good  faith  and  in  the  line  of  what  they  honestly 
think  is  their  duty.  Any  other  rule  might  work  great 
hardship  to  honest  men,  who,  with  the  best  of  motives 
have  faithfully  endeavored  to  perform  the  duties  of 
these  inferior  offices.  It  is  not  enough  to  aver  the  action 
of  such  officer  erroneous,  but  it  must  be  averred  and 
proved  that  such  action  was  taken  in  bad  faith,  either 
wantonly  or  maliciously.^  And  the  decision  of  a  school 
committee  to  close  a  school  for  reason  of  the  small 
attendance  will  prima  facie  be  presumed  done  in  good 
faith,  and  their  judgment  correct.^ 

The  discretion  of  school  directors  in  the  management 
of  public  schools  will  not  be  interfered  with  by  the 
courts  when  their  acts  are  legal, ^  but  their  illegal  acts 
will  be  restrained  by  the  courts  as  they  would  restrain 
any  other  official  wrong-doing.^  The  courts  may  also 
act  when  a  school  board  is  evenly  divided  on  a  matter 
and  are  therefore  unable  to  act.^ 

§  46.    Qualifying  of  Officers. 

Where  the  statute  provides  that  school  directors 
in  order  to  qualify  shall  subscribe  the  oath  of  office 
and  file  it  with  the  clerk,  the  statute  is  mandatory  and 

1  McCormick  v.  Burt,  95  111.  263 ;  Donahoe  v.  Richards,  3S  Me. 
389 ;  Price  v.  Barrett,  &c.,  9  Pa.  Co.  Ct.  395 ;  Stewart  v.  Southard, 
17  Ohio  St.  402. 

2  Morse  v.  Ashley,  193  Mass.  294,  79  N.  E.  481. 

3  Com.  V.  Jenks,  154  Pa.  St.  368,  26  Atl.  371 ;  In  re  DubUn,  &c., 
14  Pa.  Co.  Ct.  464 ;  In  re  Washington,  &c.,  15  Pa.  Co.  Ct.  509. 

*  Com.  V.  WiUiamson,  30  Leg.  Int.  (Pa.)  406. 
^  In  re  Bloomsburg,  &c.,  4  Pa.  Co.  Ct.  411. 

103 


§47]  OF   SCHOOL   OFFICERS  [Cn.  IV 

an  oral  oath  is  not  a  compliance  therewith  ;^  and  the 
qualifying  of  a  school  officer  may  include  the  taking  of 
oath  and  the  giving  of  a  required  bond.^  Failure  to 
qualify,  or  to  take  and  subscribe  the  oath  of  office 
within  the  time  prescribed  by  law  vacates  the  office.^ 

When  the  day  specified  by  statute  as  the  day  on  which 
an  officer  must  qualify  falls  on  a  legal  holiday,  such 
officer  qualifying  on  the  next  day  following  is  an  officer 
de  jure^ 

§  47.   Vacating  and  Removal. 

The  power  to  remove  insubordinate  and  negligent 
school  officers  is  sometimes  given  by  statute  and  may  be 
exercised  for  proper  cause. ^  The  refusal  of  a  trustee 
to  discontinue  a  proceeding  against  a  local  board  when 
ordered  to  do  so  by  the  superintendent  whose  decision 
was  conclusive,  has  been  declared  willful  disobedience 
and  proper  cause  for  removal.  "^  And  where  the  directors 
of  a  subdistrict  were  ordered  by  the  board  of  education 
to  sell  the  old  schoolhouse  and  site,  and  purchase  a 
new  site,  instead  of  complying  with  the  order,  proceeded 
to  build  a  new  schoolhouse  on  the  old  site  it  was  held 
a  degree  of  insubordination  which  justified  their  re- 
moval.^ 

But  the  power  of  removal  cannot  be  exercised  against 

1  School  District,  &c.,  v.  Bennett,  52  Ark.  511,  13  S.  W.  132. 

2  State  V.  Stewart,  90  Kan.  778,  135  Pac.  1182. 

3  Owens  V.  O'Brien,  78  Va.  116 ;  Smith  v.  Reppard,  69  W.  Va.  211, 
71  S.  E.  115. 

4  Jewett  V.  Matteson,  148  Ky.  820,  147  S.  W.  924. 
6  Heard  v.  School  Dhectors,  45  Pa.  St.  93. 

6  People  V.  Draper,  63  Hun  (N.  Y.)  389,  18  N.  Y.  S.  282. 
'  State  V.  Lynch,  8  Ohio  347. 

104 


Cn.  IV]  VACATING  AND  REMOVAL  [§  47 

an  official  who  refuses  to  do  an  act  which  rests  within 
his  own  discretion,  as  where  the  school  directors  refuse 
to  erect  a  new  school  building,  the  erection  of  which  is 
within  their  discretion.^ 

The  failure  of  a  school  board  to  organize  because  no 
one  can  get  a  majority  vote  for  president  is  neglect  of 
duty  and  just  cause  for  removal,-  and  so  is  the  failure  of 
a  board  to  appoint  the  usual  and  necessary  number  of 
teachers  because  they  cannot  agree  as  to  the  salary.^ 

Although  a  school  board  may  be  removed  for  im- 
proper acts  or  omissions  in  their  official  capacity,  they 
may  not  be  removed  for  acts  done  in  an  individual 
capacity  and  not  as  a  board  formally  convened.^ 
And  an  officer  duly  elected,  and  who  has  entered  into 
the  duties  of  his  office,  cannot  be  removed  from,  nor 
deprived  of  his  office  without  notice  and  hearing  be- 
fore a  proper  tribunal,^  although  where  an  office  is 
appointive,  or  where  the  power  of  removal  is  given  by 
statute,  an  officer  may  be  removed  at  any  time  without 
notice  or  hearing.^ 

Failure  of  a  school  officer  to  perform  ministerial  or 
clerical  duties  in  entering  upon  the  records  the  election 

^  In  re  Derry,  &c.,  1  Leg.  Gaz.  (Pa.)  59 ;  Kline  v.  School  Direc- 
tors, 2  Lane.  L.  Rev.  (Pa.)  32L 

2  In  re  Kline,  &c.,  3  Pa.  Co.  Ct.  546. 

3  Appeal  of  School  Directors,  &c.,  121  Pa.  St.  293,  15  Atl.  548. 
"  State  V.  Leonard,  3  Tenn.  Ch.  177. 

6  Jacques  v.  Litle,  51  Kan.  300,  33  Pac.  106 ;  Field  v.  Com.,  32 
Pa.  St.  478;  Ex  parte  Hennon,  38  U.  S.  230,  10  L.  ed.  138;  Page  v. 
Hardin,  8  B.  Mon.  (Ky.)  648 ;  State  v.  St.  Louis,  90  Mo.  19 ;  Wil- 
lard's  App.,  4  R.  I.  601 ;  Chase  v.  Hathaway,  14  Mass.  222 ;  DuUam 
V.  Willson,  53  Mich.  392,  19  N.  W.  112. 

«  State  V.  Mitchell,  50  Kan.  289,  33  Pac.  104. 

105 


§47]  OF   SCHOOL   OFFICERS  [Ch.  IV 

and  qualification  of  one  duly  elected  to  the  school  board 
will  not  deprive  the  one  so  elected  of  his  office,^  and  a 
resignation  will  not  be  inferred  from  failure  to  perform 
the  duties  of  the  oflfice,^  nor  is  the  office  vacated  by  an 
unaccepted  resignation.^ 

It  is  usually  provided  by  statute  that  the  removal  of 
a  school  trustee  from  the  county  makes  his  office 
vacant/  but  a  school  director  who  temporarily  moves 
out  of  a  district  for  a  few  months,  with  intention  of 
returning,  leaving  his  property  within  the  district, 
does  not  thereby  vacate  his  office  although  his  neglect 
of  duties  pertaining  thereto  are  penalized  by  statute. 
Such  officer  may  abandon  his  oflEice  by  resignation, 
removal  from  the  district,  non-user,  or  neglect  of 
duty,  but  any  of  such  acts  or  omissions  must  be  com- 
plete, and  of  a  permanent  nature,  and  the  circum- 
stances must  absolutely  indicate  the  relinquishment 
of  office ;  otherwise  there  must  be  a  judicial  determi- 
nation of  the  vacancy  of  the  office  before  it  can  be  so 
considered.^ 

A  member  of  a  school  board  by  absence  from  the 
State  for  a  period  of  six  months  does  not  thereby  vacate 
his  office.^  But  a  school  director  who  removes  from  the 
district  with  intent  not  to  return,  thereby  vacates  his 
office,  and  the  remaining  two  members  may  make  a 

1  McGlone  v.  Zornes,  32  Ky.  L.  Rep.  965,  107  S.  W.  329. 

2  Giles  V.  School  District,  &c.,  31  N.  H.  304. 

3  Townsend  v.  Trustees,  &c.,  41  N.  J.  L.  312. 

"Giles  V.  School  District,  &c.,  31  N.  H.  304;  Gildersleeve  v. 
Board,  &c.,  17  Abb.  Pr.  (N.  Y.)  201. 

5  School  District,  &c.,  v.  Garrison,  90  Ark.  335,  119  S.  W.  275. 

6  Patrick  v.  Fletcher,  149  Ky.  193,  148  S.  W.  16. 

106 


Ch.  IV]      OFFICERS  DE  FACTO  AND  DE  JURE  [§  48 

lawful  contract  without  notifying  the  absent  member 
of  the  meeting.^ 

For  misfeasance,  that  is,  the  improper  doing  of  an 
act  which  might  be  otherwise  done  lawfully,  the  school 
directors  may  not  be  removed  from  office.^ 

§  48.   Officers  De  Facto,  De  Jure  and  Intruders. 

A  public  officer,  such  as  a  member  of  a  school  board,^ 
may  be  an  officer  de  jure,  or  an  officer  de  facto,  or  both, 
or  a  mere  intruder. 

An  officer  de  facto  may  be  defined  as  one  who  has  the 
reputation  of  being  the  officer  he  assumes  to  be,  and 
yet  is  not  a  good  officer  in  point  of  law.* 

A  very  comprehensive  definition  of  an  officer  de  facto 
has  been  given  as  follows  :  ''  An  officer  de  facto  is  one 
whose  acts,  though  not  those  of  a  lawful  officer,  the  law, 
upon  principles  of  policy  and  justice,  will  hold  valid 
so  far  as  they  involve  the  interests  of  the  pubhc  and 
third  persons,  where  the  duties  of  the  office  were 
exercised : 

"  First,  without  a  known  appointment  or  election, 
but  under  such  circumstances  of  reputation  or  acqui- 
escence as  were  calculated  to  induce  people,  without 
inquiry,  to  submit  to  or  invoke  his  action,  supposing 
him  to  be  the  officer  he  assumed  to  be. 


1  Marr  v.  School  District,  &c.,  107  Ark.  305,  154  S.  W.  944. 

2  In  re  Union,  &c.,  12  Pa.  Co.  Ct.  547. 

^  Ogden  V.  Raymond,  22  Conn.  379 ;  Sanborn  v.  Neal,  4  Minn. 
126 ;  Com.  v.  Morrisey,  86  Pa.  St.  416 ;  McCoy  v.  Curtice,  9  Wend. 
(N.  Y.)  17. 

*  King  V.  Corporation  of  Bedford  Level,  6  East  356 ;  Petersilea 
V.  Stone,  119  Mass.  465;  State  v.  Carroll,  38  Conn.  449. 

107 


§48]  OF  SCHOOL   OFFICERS  [Ch.  IV 

"  Second,  under  color  of  a  known  and  valid  appoint- 
ment or  election,  but  where  the  officer  has  failed  to 
conform  to  some  precedent  requirement  or  condition, 
as  to  take  an  oath,  give  a  bond  or  the  like. 

"  Third,  under  color  of  a  known  election  or  appoint- 
ment, void  because  the  officer  was  not  eligible,  or  be- 
cause there  was  a  want  of  power  in  the  electing  or  ap- 
pointing body,  or  by  reason  of  some  defect  or  irregularity 
in  its  exercise,  such  ineligibility,  want  of  power  or  defect 
being  unknown  to  the  public. 

"  Fourth,  under  color  of  an  election,  or  appointment 
by  or  pursuant  to  a  public  unconstitutional  law, 
before  the  same  is  adjudged  to  be  such."  ^ 

The  early  cases  held  that  to  constitute  one  an  officer 
de  facto  it  was  necessary  that  his  claim  to  office  must 
have  been  under  some  form  or  color  of  election  or  ap- 
pointment. But  color  of  election  or  appointment  is 
not  now  considered  as  an  essential  element  so  far  as 
the  rights  of  third  persons  are  concerned. ^  But  it  is 
necessary,  in  order  to  constitute  one  an  officer  de 
facto  and  distinguish  him  from  an  usurper  or  a  mere 
intruder,  that  he  hold  his  office  under  color  of  right. 
This  color  of  right  may  consist  in  an  election  or  appoint- 
ment, or  in  holding  over  after  the  expiration  of  his  term 
of  office,  or  in  acquiescence  by  the  pubhc  in  the  acts  of 
such  officer  for  such  a  length  of  time  as  to  raise  the  pre- 
sumption of  colorable  right  by  election  or  appointment.^ 

1  State  V.  Carroll,  38  Conn.  449. 

2  Petersilea  v.  Stone,  119  Mass.  465 ;  Brown  v.  Lunt,  37  Me.  423  ; 
Cary  v.  State,  76  Ala.  78. 

3  Hamlin  v.  Kassafer,  15  Oreg.  456,  15  Pac.  778. 

108 


Cn.  IV]      OFFICERS  DE  FACTO  AND  DE  JURE  [§48 

Consequently  by  acquiescence  a  mere  intruder  may 
become  an  officer  de  facto ;  so  also  one  elected  under  an 
unconstitutional  statute  to  a  valid  office ;  ^  or  at  an 
election  of  which  proper  notice  was  not  given ;  ^  or 
who  was  not  eligible  to  the  office ;  ^  or  accepted  an  in- 
compatible office,  and  thereby  his  previously  held 
office  was  forfeited ;  ^  or  did  not  give  a  bond  as  pre- 
scribed by  law ;  ^  or  when  the  bond  given  was  de- 
fective ;  ^  or  when  his  bond  was  not  duly  filed ;  ^  or 
when  he  held  over  after  expiration  of  his  term ;  ^  or 
removed  from  the  district ;  ^  or  was  appointed  when  he 
should  have  been  elected. ^°  It  should  be  noted  however 
that  no  one  can  be  an  officer  either  de  jure  or  de  facto 
if  the  office  which  he  holds  was  created  by  an  un- 
constitutional statute.  Such  holder  of  office  is  a  mere 
usurper.^^ 

The  doings  of  an  officer  de  facto,  as  affecting  third 
persons  who  have  an  interest  in  the  thing  done,  and  the 
public,  are  valid,  and  must  be  respected  until  he  is 

1  Cole  V.  Black  River  Falls,  57  Wis.  110,  14  N.  W.  906;  State  v. 
Carroll,  38  Conn.  449. 

2  Yorty  V.  Paine,  62  Wis.  154,  22  N.  W.  137. 

3  Farrier  v.  State,  48  N.  J.  L.  613,  7  Atl.  881 ;  Lockhart  v.  Troy, 
48  Ala.  579. 

*  Woodside  v.  Wagg,  71  Me.  207. 

5  Gunn  V.  Tacket,  67  Ga.  725. 

6  Adams  v.  Tator,  42  Hun  (N.  Y.)  384. 

'  State  V.  Dierberger,  90  Mo.  369,  2  S.  W.  286. 

^Petersilea  v.  Stone,  119  Mass.  465;  People  v.  Beach,  77  111. 
52 ;  Morton  v.  Lee,  28  Kan.  286 ;  Wapello  County  v.  Bigham,  10 
Iowa  39. 

9  Case  V.  State,  69  Ind.  46. 

10  Chicago,  &c.,  v.  Langlade,  &c.,  56  Wis.  614,  14  N.  W.  844. 

"  Norton  v.  Shelby  County,  118  U.  S.  425,  30  L.  ed.  178,  6  S.  Ct. 
1121. 

109 


§48]  OF   SCHOOL   OFFICERS  [Ch.  IV 

ousted  from  office  by  quo  warranto,  but  the  acts  of  an 
usurper  are  wholly  void.^ 

An  officer  de  jure  is  one  who  has  the  lawful  right  to 
the  office,  but  who  has  either  been  ousted  from  or 
never  actually  taken  possession  of  it.  When  the  officer 
de  jure  is  also  the  officer  de  facto,  the  lawful  title  and 
possession  are  united,  and  no  other  person  can  be  an 
officer  de  facto  for  that  office.^ 

Within  the  scope  of  his  authority  the  acts  of  an  officer 
de  jure  are  valid  for  all  purposes.  Not  so  with  an 
officer  de  facto ;  his  acts  are  only  recognized  in  the  law 
to  be  valid  and  effectual  so  far  as  they  affect  the  public 
and  third  persons.  As  to  these  his  acts  are  as  valid  as 
if  he  were  an  officer  de  jure.  The  reason  of  the  rule  is 
apparent.  It  would  be  as  unjust  as  unreasonable  to 
require  every  individual  doing  business  with  such 
officer  to  investigate  and  determine  at  his  peril  the  title 
of  such  officer.  Third  persons,  from  the  nature  of  the 
case,  cannot  always  investigate  such  right  even  so  far 
as  to  say  that  the  holder  of  an  office  has  color  of  title 
to  it  by  virtue  of  some  appointment  or  election.  If 
he  is  seen  to  be  publicly  exercising  the  authorities  of 
the  office,  and  if  they  find  that  this  exercise  is  generally 
acquiesced  in,  they  are  entitled  to  treat  him  as  such 
officer,  and  if  they  deal  with  him  as  such,  he  should  not 
be  subjected  to  the  danger  of  having  his  acts  collater- 
ally attacked.^     It,  moreover,  is  against  the  policy  of 

1  Plymouth  v.  Painter,  17  Conn.  585. 

2  Hamlin  v.  Kassafer,  15  Oreg.  456,  15  Pac.  778. 

^  Petersilea  v.  Stone,  119  Mass.  467;  School  District,  &c.,  v. 
Garrison,  90  Ark.  335,  119  S.  W.  275. 

110 


Ch.  IV]     OFFICERS  DE  FACTO  AND  DE  JURE  [§  48 

the  law  to  allow  a  suit  between  private  individuals  to 
determine  the  title  to  an  office.  Such  judgment  could 
only  bind  the  parties,  and  would  be  of  no  effect  as 
against  the  public. 

A  mere  usurper  or  intruder  is  one  who  has  intruded 
upon  the  office  and  acts  without  color  of  title  or  right, 
and  whose  acts  are  utterly  void.^ 

The  official  acts  of  a  de  facto  county  superintendent 
are  valid  so  long  as  he  is  permitted  to  exercise  the  func- 
tions of  that  office.^  And  any  school  officer  acting  as 
such  will  be  presumed  to  be  rightfully  in  office,^  es- 
pecially when  he  is  shown  to  have  been  acting  under 
color  of  election ;  ^  and  evidence  that  the  general  re- 
putation in  the  district  is  that  he  is  not  an  officer  de 
jure  is  not  admissible.^ 

The  acts  of  a  school  officer  de  facto,  who  has  a  color- 
able right  to  office,''  are  generally  valid. ^  Bonds  issued 
by  a  de  facto  board  of  education  are  valid  in  the  hands 
of  a  bona  fide  holder  for  value,^  and  a  de  facto  school  board 
may  make  a  contract  with  a  teacher  that  will  bind  the 

1  Hooper  v.  Goodwin,  48  Me.  80;  Tucker  v.  Aiken,  7  N.  H.  113  ; 
McCraw  v.  Williams,  33  Gratt.  510;  Com.  v.  Bush,  131  Kv.  384, 
115  S.  W.  249. 

2  State  V.  Blegen,  26  S.  D.  106,  128  N.  W.  488. 

3  Burgess  v.  Pue,  2  Gill  (Md.)  254 ;  State  v.  Williams,  27  Vt. 
755. 

^Ring  V.  Grout,  7  Wend.  (N.  Y.)  341. 

5  Ibid. 

6  Hand  v.  Deady,  79  Hun  (N.  Y.)  75,  29  N.  Y.  S.  633 ;  Washing- 
ton, &c.,  V.  School,  &c.,  77  Md.  283,  260  Atl.  115. 

7  School  District,  &c.,  v.  Cowee,  9  Neb.  53,  2  N.  W.  235 ;  Goodwin 
V.  Perkins,  39  Vt.  598. 

8  National,  &c.,  v.  Board,  &c.,  159  U.  S.  262,  40  L.  ed.  147,  15 
S.  Ct.  1041. 

Ill 


§48]  OF  SCHOOL   OFFICERS  [Ch.  IV 

district.^  And  any  contract  which  a  board  of  education 
has  power  to  make,  they  have  power  to  ratify  when 
made  by  officers  de  facto  who  have  acted  under  an 
invalid  law.^ 

The  right  of  de  facto  school  directors  to  perform  the 
duties  of  their  office  can  be  questioned  only  by  the 
State  in  a  proceeding  brought  for  that  purpose  at  the 
instance  of  the  attorney  general  or  county  attorney,^ 
and  a  treasurer  cannot  refuse  to  pay  warrants  drawn  by 
a  de  facto  school  board  on  the  ground  that  they  hold 
office  illegally.^  And  where  there  are  two  school  boards 
each  claiming  the  office,  and  the  board  de  jure  notifies 
persons  not  to  contract  with  the  other  board,  those 
who  do  so  contract  cannot  recover  from  the  district.^ 

The  right  of  suffrage  and  the  capacity  to  hold  office, 
unless  otherwise  expressly  declared,  must  coexist. 
Therefore,  unless  so  provided  by  statute,  an  alien  or 
one  who  is  not  a  qualified  elector  is  ineligible  to  hold  an 
elective  oflace.  This  rule  of  law  is  founded  upon  the 
acknowledged  principle  which  lies  at  the  very  founda- 
tion of  all  independent  popular  governments,  —  that 
the  government  is  instituted  by  the  citizens  for  their 
liberty  and  protection,  and  that  it  is  to  be  administered, 
and  its  powers  and  functions  exercised  by  them  and 


1  School,  &c.,  V.  Ziegler,  1  Ind.  App.  138,  27  N.  E.  303 ;  DeWolf 
V.  Watterson,  35  Hun  (N.  Y.)  111. 

^  Dubuque,  &c.,  v.  Dubuque,  13  Iowa  555. 

3  Franklin,  &c.,  v.  Board,  &c.,  75  Mo.  408;  Jacques  v.  Litle,  51 
Kan.  300,  33  Pac.  106. 

4  Miahle  v.  Fournet,  13  La.  An.  607. 

s  Genessee,  &c.,  v.  McDonald,  98  Pa.  St.  444;  State  v.  Blossom, 
19  Nev.  312,  10  Pac.  430 ;  White  v.  Archibald,  8  Atl.  (Pa.)  443. 

112 


Ch.  IV]       MEETINGS  OF  SCHOOL  DIRECTORS  [§  50 

through  their  agencies.     And  this  is  the  rule  although 
constitution  and  statutes  do  not  expressly  so  ordain.^ 

§  49.   Usurpation  of  Duties. 

Where  the  mayor  and  city  council  usurp  the  duties 
of  the  school  directors,  the  right  of  the  alleged  usurpa- 
tion must  be  settled  by  quo  warranto  or  other  action 
but  cannot  be  tried  by  mandamus.^  And  a  superintend- 
ent of  the  public  schools  is  entitled  to  an  injunction 
to  restrain  persons  usurping  an  office  from  remov- 
ing him  from  his  position  to  which  he  is  legally  entitled, 
or  in  other  ways  interfering  with  him  in  the  discharge 
of  his  duties.^ 

Wliere  a  school  board  of  six  members  divide  them- 
selves into  two  equal  factions,  and  each  attempts  to 
organize  and  usurp  the  powers  of  the  board,  no  organ- 
ization is  effected,  and  the  entire  board  may  be 
removed.* 

§  50.   Meetings  of  School  Directors. 

The  authority  of  school  trustees  is  limited  to  the  legis- 
lative authority  conferred,^  and  therefore  they  can 
perform  only  such  functions  as  are  prescribed  by  statute, 
or  are  fairly  implied  therefrom.  Consequently  a  vote 
taken  at  a  meeting  held  outside  the  district  is  void.^ 

1  Scott  V.  Strobach,  49  Ala.  477 ;  State  v.  Murray,  28  Wis.  96 ; 
State  V.  Trumpf,  50  Wis.  103,  5  N.  W.  876. 

2  Fowler  v.  Brooks,  188  Mass.  64,  74  N.  E.  291. 

3  LefeATe  v.  Besterling,  137  S.  W.  (Tex.)  1159. 

*  In  re  Butler,  &c.,  158  Pa.  St.  159,  27  Atl.  849. 

6  State  V.  McBride,  31  Nev.  57,  99  Pac.  705. 

6  State  V.  Kessler,  136  Mo.  App.  236,  117  S.  W.  85. 

113 


§51]  OF   SCHOOL   OFFICERS  [Ch.  IV 

But  where  all  members  of  a  school  board  are  present, 
they  may  take  official  action,  though  the  meeting  is 
not  formally  called.^ 

Where  the  statute  requires  the  secretary  of  a  school 
committee  to  keep  a  permanent  record  book  in  which 
all  votes,  orders,  and  proceedings  of  the  committee 
shall  be  recorded,  it  is  a  mere  direction  to  the  secretary 
and  does  not  have  the  effect  of  rendering  invalid  such 
regulations  adopted  by  the  committee  as  are  not  re- 
corded therein. 2  And  a  rule  of  a  school  board  is  waived 
when  such  board  take  unanimous  action  inconsistent 
therewith.^ 

§  51.   Notice  of  Meetings. 

Even  though  there  is  a  general  understanding  between 
the  members  of  a  school  board  that  in  the  absence  of 
one  member  the  others  could  act  without  prior  notice 
to  the  absent  member,  a  contract  entered  into  at  a 
meeting  where  one  member  was  absent  and  had  had  no 
notice,  is  void.^  And  the  fact  that  a  member  of  a  school 
board  has  said  that  he  is  opposed  to  certain  action, 
does  not  make  it  unnecessary  to  give  him  notice  of  a 
meeting  upon  which  such  action  is  to  be  officially 
taken.  ^ 

Where  an  honest  and  reasonable  effort  has  been  made 
to  notify  an  absent  school  director  of  a  meeting  of  the 

1  Butler  V.  Joint  School  District,  &c.,  155  Wis.  626, 145  N.  W.  180. 
See  also,  §§  43,  44,  supra. 

2  Alvord  V.  Chester,  180  Mass.  20,  61  N.  E.  263. 

3  Weatherly  v.  Chattanooga,  48  S.  W.  (Tenn.)  136. 

4  School  District  v.  Castell,  105  Ark.  106,  150  S.  W.  407. 
6  Scott  V.  Pendley,  114  Ky.  606,  71  S.  W.  647. 

114 


Ch.  IV]  RECORDS  [§  52 

board,  which  effort  was  futile,  the  remaining  two  mem- 
bers of  the  board  may  lawfully  act.^  Nor  will  the  fact 
that  the  statute  provides  that  no  official  business  shall 
be  transacted  by  a  board  of  school  directors,  except 
at  a  regular  or  special  meeting,  invalidate  action  taken 
by  them  when  all  members  are  present  even  without 
notice  of  a  meeting. ^  And  if  all  school  directors  are 
present  at  a  meeting  and  participate  therein,  it  is  im- 
material that  they  had  no  notice  of  the  meeting.^ 

§  52.   Records. 

A  school  board  should  keep  a  written  record  of  its 
proceedings.'^  But  it  is  not  necessary  that  every  act 
in  regard  to  the  management  of  each  school  be  author- 
ized or  confirmed  by  formal  vote,  or  that  all  rules  and 
orders  required  for  the  discipline  and  good  conduct  of 
the  schools  shall  be  matter  of  record  with  the  committee. 
It  would  be  practically  impossible  sufficiently  to  provide 
for  all  matters  by  a  system  of  rules,  however  carefully 
prepared  and  promulgated.  Much  must  necessarily 
be  left  to  the  individual  members  of  the  committee,  and 
to  teachers  of  the  several  schools ;  ^  so  where  notice  of 
the  discontinuance  of  a  school  is  given  to  the  persons 
interested  its  validity  is  not  affected  by  the  omission 


^  School  Directors  v.  Sprague,  78  III.  App.  390. 

2  Lawrence  v.  Trauer,  136  III.  474,  27  N.  E.  197. 

3  School  District,  &c.,  v.  Allen,  83  Ark.  491,  104  S.  W.  172 ; 
People  V.  Frost,  32  111.  App.  242;  Lee  v.  Mitchell,  108  Ark.  1,  156 
S.  W.  450;  Hanna  v.  Wright,  116  Iowa  275,  89  N.  W.  1108. 

"  Broussard  v.  Verret,  43  La.  An.  929,  9  So.  905 ;  Gearhart  v. 
Dixon,  1  Pa.  St.  224. 

s  Russell  V.  Lynnfield,  116  Mass.  365. 

115 


§53]  OF   SCHOOL   OFFICERS  [Ch.  IV 

of  the  trustee  at  the  time  of  making  his  order  to  enter 
it  of  record.^ 

Although  the  acts  of  a  board  of  school  directors  should 
be  recorded,  if  not  recorded  they  are  so  far  valid  that 
those  who  contract  with  them  cannot  repudiate  the  con- 
tract merely  because  the  matter  was  not  recorded.^  And 
where  the  minutes  of  a  board  of  education  show  that  a 
meeting  was  held  pursuant  to  a  rule  fixing  time  and  place 
and  defining  a  quorum,  it  will  be  presumed  that  a  meet- 
ing was  so  called  and  held.^ 

One  who  has  been  clerk  of  a  school  board,  cannot 
after  the  expiration  of  his  term  of  office,  correct  the 
minutes  of  a  meeting  of  the  board  as  a  public  officer,  nor 
as  such  correct  his  official  entries  in  the  public  records.^ 

§  53.   Voting. 

Where  the  vote  of  a  town  requires  the  school  directors 
to  appoint  a  superintendent  of  schools,  they  may,  after 
electing  the  superintendent  by  ballot,  reconsider  the 
vote  at  the  same  meeting  before  communicating  it  to 
the  person  appointed,  and  at  another  meeting  elect 
another  person  to  fill  the  position,  without  any  contract 
arising  with  the  party  whose  election  was  reconsidered.^ 

Although  the  more  important  duties  of  the  school 
directors  must  be  delegated  by  a  formal  vote,  it  is  not 
necessary  that  subordinate  matters  must  be  so  voted. 
This  would  be  impracticable.     So  one  who  is  authorized 

1  Tufts  V.  State,  119  Ind.  232,  21  N.  E.  892. 

2  School  Directors,  &c.,  v.  McBride,  22  Pa.  St.  215. 

3  American,  &c.,  v.  Board,  &c.,  131  Wis.  220,  110  N.  W.  403. 

4  Beck  V.  Board,  &c.,  76  Ohio  St.  587,  81  N.  E.  1180. 
6  Wood  V.  Cutter,  138  Mass.  149. 

116 


Cn.  IV]  MAKING  CONTRACTS  [§  54 

by  the  school  directors  to  take  charge  of  a  school  may, 
without  a  forraal  vote  of  the  school  directors,  employ 
one  to  keep  order  at  the  door  and  such  contract  is  bind- 
ing upon  the  city.^ 

§  54.   Making  Contracts. 

As  members  of  boards  of  education  and  other  public 
officers  are  guardians  of  the  public  welfare,  they  must 
allow  no  transaction  growing  out  of  their  official  posi- 
tion or  ser^dces  to  inure  to  their  personal  benefit ;  and 
from  such  transactions  the  law  will  not  imply  a  con- 
tract.^ When  a  contract  grows  out  of  and  is  connected 
with  an  illegal  act,  it  will  not  be  enforced.^  Therefore 
an  order  by  two  of  the  trustees  of  a  school  district,  one 
of  whom  is  personally  interested  in  it,  and  therefore 
incompetent  to  act,  is  void  for  want  of  the  sanction  of 
a  competent  majority  of  the  board,  whether  the  in- 
terested trustee  has  acted  fairly  or  not.^ 

And  where  one  of  the  commissioners  of  a  board  of 
education,  when  notified  of  the  time  and  place  of  the 
meeting  of  the  board  for  the  purpose  of  passing  on  a 
proposed  contract,  refused  to  go  on  account  of  the  loss 
he  would  sustain  by  closing  his  place  of  business,  and 
the  agent  of  the  party  seeking  the  contract  with  the 
board  offered  and  paid  to  him  two  and  a  half  dollars 
in  money  to  reimburse  him  for  his  loss  to  be  thus  in- 
curred, telling  him  at  the  same  time  that  the  payment 

1  Huse  V.  Lowell,  10  Allen  (Mass.)  149. 

2  Davis  V.  United  States,  23  Ct.  CI.  329. 

3  Jones  V.  Surprise,  64  N.  H.  243,  9  Atl.  384 ;  State  v.  Cross,  38 
Kan.  696,  17  Pac.  190. 

4  Shakespear  v.  Smith,  77  Cal.  638,  20  Pac.  294. 

117 


§  54]  OF   SCHOOL  OFFICERS  [Ch.  IV 

was  not  to  influence  his  decision  in  any  way,  and  the 
commissioner  attended  the  meeting  and  voted  for  the 
contract,  that  transaction  renders  his  vote  and  conse- 
quently the  contract  invaUd.^  Such  action  amounts 
to  an  unlawful  influence  which  has  the  effect  of  bribery 
so  far  as  to  render  void  any  action  taken  by  the  aid  of 
such  member,  and  the  act  is  against  public  policy. 

A  written  contract  signed  by  the  trustees  of  a  school 
district  must  show  that  they  have  signed  in  their  repre- 
sentative capacity ;  otherwise  they  will  be  personally 
liable,  and  the  district  will  not  be  bound.  If  a  trustee 
merely  adds  to  the  signature  of  his  name  the  words 
''trustee"  or  ''school  director",  this  appendix  is 
regarded  as  merely  descriptio  personae,  and  he  binds 
himself  instead  of  the  district  he  represents.  Such 
words  do  not  in  themselves  make  third  persons  charge- 
able with  notice  of  any  representative  relation  of  the 
signer . 2  So  where  the  written  contract  for  the  building  of 
a  schoolhouse  on  its  face  shows  no  intent  to  make  it  the 
contract  of  the  district,  or  that  the  trustees  were  acting 
on  behalf  of  the  district,  but  was  signed  with  the  names 
of  the  school  directors  with  their  description  as  such  they 
were  held  individually  liable.^  But  if  in  the  body  of  the 
instrument  they  are  designated  as  trustees  of  the  public 
schools  of  the  district,  it  is  the  contract  of  the  district.^ 
And  if  the  contract  makes  no  reference  to  the  school 


1  Honaker  v.  Board,  &c.,  42  W.  Va.  170,  24  S.  E.  544. 

2  Metcalf  V.  Williams,  104  U.  S.  93,  26  L.  ed.  667. 

3  Sharp  V.  Smith,  32  111.  App.  336. 

^  Mackenzie  v.  School,  &c.,  72  Ind.  189 ;    Sanborn  v.  Neal,  4 
Minn.  126 ;  Lyon  v.  Adamson,  7  Iowa  509. 

118 


Ch.  IV[  making  contracts  [§  54 

district  being  bound,  but  is  signed  by  two  persons  with 
the  appendices  "  president  school  board  ",  and  "  secre- 
tary school  board,"  the  contract  reciting  "  We  agree  to 
pay,"  although  the  heading  contains  the  name  of  the 
State,  county  and  township,  it  is  the  contract  of  the 
two  persons  who  signed  it.'^  Where  in  the  body  of  an 
instrument,  the  obligation  created  purports  to  be  a 
personal  one ;  although  it  is  signed  by  the  parties  as 
trustees,  the  language  of  the  body  is  controlling,  and 
they  are  personally  liable.^ 

Where  duly  appointed  officers  or  agents  of  a  corpora- 
tion acting  within  the  scope  of  their  authority,  execute 
an  instrument  in  behalf  of  the  corporation,  signing  their 
own  names  and  affixing  their  own  seals,  such  seals  are 
of  no  effect,  and  the  instrument  is  the  simple  contract 
of  the  corporation,  binding  the  corporation  and  not  the 
individuals  signing  it,  where  the  instrument  as  a  whole 
shows  an  intent  to  act  for  the  corporation,  and  does  not 
show  an  intent  to  create  a  personal  liability.^ 

Where  school  directors,  not  authorized  by  vote  of  the 
people  as  required  by  statute,  sign  a  promissory  note 
with  their  individual  names  they  are  personally  liable 
notwithstanding  the  note  was  given  for  school  purposes. "* 
But  where  a  school  director  signs  a  note  and  adds  to 
his  signature  "  Trustee  of  S.  Township  "  the  note  is 

1  Wing  V.  Glick,  56  Iowa  473,  9  N.  W.  384. 

2  Western  Publishing  House  v.  Murdick,  4  S.  D.  207,  56  N.  W.  120. 
2  Dillon  on  Munic.  Corp.,  5th  ed.,  §  785 ;  Regents,  &c.,  v.  Detroit, 

&c.,  12  Mich.  138 ;  Blanchard  v.  Blackstone,  102  Mass.  343  ;  Bank, 
&c.,  V.  Guttschlick,  14  Pet.  (U.  S.)  19.  But  see,  FuUam  v.  Brook- 
field,  9  Allen  (Mass.)  1. 

^  School  Directors  v.  Miller,  54  111.  338. 

119 


§54]  OF   SCHOOL   OFFICERS  [Ch.  IV 

that  of  the  township  and  the  trustee  is  not  personally 
bound. ^ 

Where  school  directors  contract  a  debt  in  excess  of 
the  statutory  or  constitutional  debt  limit,  such  debt 
is  valid  up  to  such  limit, ^  especially  when  fully  per- 
formed by  the  contractor.^ 

The  provisions  of  the  statutes  must  always  be  com- 
plied with  in  making  contracts,  otherwise  no  legal  lia- 
bility is  created.^  And  in  order  to  bind  the  district 
by  a  contract,  a  school  board  must  act  as  a  board,  and 
not  as  individual  members.^ 

The  directors  of  a  school  district  may  enter  into  a 
contract  for  the  district,  the  performance  of  which  will 
begin  after  the  expiration  of  the  term  of  office  of  some 
of  the  directors,  and  such  contract  may  be  made  by 
two  directors  when  there  are  but  two  on  the  board. ^ 
But  a  school  district  has  no  authority  to  incur  a  debt 
and  issue  a  warrant  therefor,  payable  in  the  future.'^ 
And  one  dealing  with  a  school  board  is  presumed  to  have 
knowledge  of  the  limited  authority.^ 

Without  authority  of  statute  a  school  board  cannot 
make  a  contract  for  school  supplies  which  provides 
any  other  place  of  payment  than  the  school  treasury, 

1  State  V.  Helms,  136  Ind.  122,  35  N.  E.  893. 

2  People  V.  Peoria,  &c.,  216  111.  221,  74  N.  E.  734.  But  see, 
Grady  v.  Landram,  111  Ky.  100,  63  S.  W.  284. 

3  McGillivray  v.  Joint  School  District,  112  Wis.  354,  88  N.  W.  310. 

4  Cascade,  &c.,  v.  Lewis,  &c.,  43  Pa.  St.  318. 

6  School  District,  &c.,  v.  Shelton,  26  Okla,  229,  109  Pac.  67; 
Johnson  v.  Dye,  142  Mo.  App.  424,  127  S.  W.  413. 

6  School  District,  &c.,  v.  Garrison,  90  Ark.  335,  119  S.  W.  275 

7  jMarkey  v.  School  District,  &c.,  58  Neb.  479,  78  N.  W.  932. 

8  Thornburgh  v.  School  District,  &c.,  175  Mo.  12,  75  S.  W.  81. 

120 


Ch.  IV]  MAKING  CONTRACTS  [§54 

nor  which  contains  a  provision  that  necessary  attorney's 
fees  be  paid  by  the  district.^ 

Where  the  statute  makes  it  the  duty  of  a  school  board 
to  select  the  site,  adopt  the  plans,  and  contract  for 
the  building  of  a  schoolhouse,  that  duty  cannot  be  dele- 
gated. ^  And  the  approval  of  the  mayor  to  a  contract 
of  a  school  committee,  resting  in  his  discretion,  will  not 
be  coerced  by  a  mandamus.^ 

Where  school  directors  make  an  illegal  contract,  and 
illegally  sign  an  order  in  payment  therefor,  they  be- 
come individually  liable  under  the  contract."* 

Where  the  statute  fixes  a  certain  time  and  place  for 
transacting  the  annual  business  of  a  school  district,  and 
it  is  not  held  on  that  day,  a  contract  made  in  pursuance 
of  a  vote  taken  at  such  meeting  on  a  different  day  is 
void,  and  no  action  can  be  maintained  against  a  party 
who  breaks  a  contract  to  build  a  schoolhouse,  made  in 
pursuance  of  such  vote.^  And  a  contract  made  by  a 
majority  of  the  school  directors  at  a  meeting  held  at  a 
time  other  than  that  fixed  for  regular  meetings,  and  of 
which  the  minority  had  no  notice  is  not  binding  on 
the  district.^  But  if  all  members  of  the  board  are  noti- 
fied to  be  present  a  contract  made  by  the  majority  is 
valid, ^  if  authorized  at  a  regular  meeting,^  and  the  ab- 

1  Weir  Furnace  Co.  v.  Seymour,  99  Iowa  115,  68  N.  W.  584. 

2  Kinney  v.  Howard,  133  Iowa  94,  110  N.  W.  282. 

3  McLean  v.  White,  216  Mass.  62,  102  N.  E.  929. 

4  State  Bank,  &c.,  v.  Keinberger,  140  Wis.  517,  122  N.  W.  1132. 
6  Fluty  V.  School  District,  &c.,  49  Ark.  94,  4  S.  W.  278. 

6  School  District,  &c.,  v.  Bennett,  52  Ark.  511,  13  S.  W.  132. 

7  Wilson  V.  Waltersville,  &c.,  46  Conn.  400 ;  People  v.  Peters, 
4  Neb.  254. 

8  Andrews  v.  School  District,  &c.,  37  Minn.  96,  33  N.  W.  217. 

121 


§54]  OF   SCHOOL   OFFICERS  [Ch.  IV 

sent  member  previously  authorized,  or  subsequently 
gave,  his  assent.^ 

A  contract  legally  made  is  not  rendered  invalid  be- 
cause no  record  is  made  of  the  action  of  the  board. ^ 
And  members  of  the  school  board  should  contract  only 
when  duly  convened  at  a  board  meeting,  and  sitting  in 
consultation,  and  a  contract  signed  by  them  separately 
without  consultation,  cannot  be  enforced,  especially 
when  they  were  induced  to  sign  by  false  and  fraudulent 
statements.^ 

A  contract  with  a  school  district  need  not  be  in  writ- 
ing unless  the  statute  requires  it.^  And  where  the 
statute  requires  that  a  contract  be  in  writing  it  is  not 
necessary  that  the  contract  be  put  into  writing  at  the 
session  of  the  board  at  which  it  is  made,  it  being  sufficient 
if  it  be  reduced  to  writing  and  signed  after  the  board 
has  adjourned.^ 

Although  the  statute  requires  contracts  with  teachers 
to  be  in  writing,  if  a  teacher  orally  contracts  with  the 
directors  to  teach  a  period  of  nine  months,  and  after 
teaching  seven  months  and  receiving  pay  therefor  is 
discharged,  the  acceptance  by  the  district  of  such  part 

1  People  V.  Peters,  4  Neb.  254.  But  see,  Pennsylvania,  &c.,  v. 
Board,  &c.,  20  W.  Va.  360. 

2  Bellmeyer  v.  Marshalltown,  44  Iowa,  564 ;  Page  v.  Township,  &c., 
59  Mo.  264 ;  School  Directors,  &c.,  v.  McBride,  22  Pa.  St.  215. 

3  Mills  V.  Collins,  67  Iowa  164,  25  N.  W.  109. 

4  Jackson,  &c.,  v.  Shera,  8  Ind.  App.  330,  35  N.  E.  842. 

5  Faulk  V.  McCartney,  42  Kan.  695,  22  Pac.  712 ;  Milford  v. 
Zeigler,  1  Ind.  App.  138,  27  N.  E.  303 ;  Holloway  v.  School  Dis- 
trict &c.,  62  Mich.  153,  28  N.  W.  764 ;  Armstrong  v.  School  Dis- 
trict, &c.,  28  Mo.  App.  169;  Dolan  v.  School  District,  80  Wis.  155, 
49  N.  W.  960. 

122 


Ch.  IV]  BIDS  AND  BIDDERS  [§  55 

performance  will  be  a  ratification  of  the  contract,  and 
the  district  will  be  liable  for  the  whole  amount.^  But 
an  oral  contract  with  a  teacher,  made  without  authority 
to  make  even  a  written  contract,  will  not  be  ratified 
by  a  part  performance  when  the  board  from  the 
beginning  repudiated  the  entire  contract,  having  so 
voted,  and  instructed  the  secretary  to  so  notify  the 
teacher.2 

§  55.   Bids  and  Bidders. 

Before  entering  into  a  contract  with  a  person  who 
agrees  to  furnish  supplies  or  erect  a  school  building, 
it  is  not  necessary  for  the  school  officials  to  advertise 
for  bids,  unless  they  are  required  by  statute  to  do  so.^ 
And  where  proposals  are  advertised  for,  in  compliance 
with  the  statute  which  does  not  require  that  a  contract 
be  awarded  to  the  lowest  bidder,  and  the  school  board 
advertises  that  it  reserves  the  right  to  reject  any  or  all 
bids,  in  the  absence  of  fraud  on  the  part  of  the  board 
an  injunction  will  not  lie  to  prevent  them  awarding  the 
contract  to  one  who  was  not  the  lowest  bidder.''  If 
the  statute  requires  that  a  contract  be  let  to  the  lowest 
responsible  bidder,  and  that  bonds  with  sufficient 
sureties  shall  be  required,  the  school  directors  have  no 
authority  to  contract  with  one  who  is  not  the  lowest 
bidder,  and  who  does  not  furnish  the  required  bond. 
Acceptance  of  such  bid  does  not  constitute  a  contract.^ 

^  Cook  V.  North  McGregor,  40  Iowa  444. 

2  Herrington  v.  Liston,  47  Iowa  11. 

^  Hughes  V.  School  Directors,  8  Luz.  Leg.  Reg.  (Pa.)  284. 

4  Chandler  v.  Board,  &c.,  104  Mich.  292,  62  N.  W.  370. 

6  Weitz  V.  Independent,  &c.,  79  Iowa  423,  44  N.  W.  696. 

123 


§  55]  OF   SCHOOL   OFFICERS  [Ch.  IV 

Although  it  is  a  rule  of  a  school  board  to  let  contracts 
to  lowest  bidders,  in  the  absence  of  a  statute  so  requir- 
ing, they  are  not  obliged  to  do  so,  and  where  their 
advertisement  states  that  they  reserve  the  right  to 
reject  any  or  all  bids,  one  making  the  lowest  bid  has 
no  right  of  action  against  the  board  who  rejects  the 
bid  and  awards  the  contract  to  another,  even  if  the  re- 
jection is  from  caprice  or  favoritism.^  But  where  a 
board  of  awarding  officers  act  contrary  to  law,  or 
fraudulently,  the  rights  of  the  lowest  bidder  will  be  pro- 
tected.2  And  where  there  is  but  one  bidder  on  a  con- 
tract, he  cannot  claim  that  he  was  the  lowest  bidder.^ 

The  provision  that  a  contract  will  be  awarded  to  the 
"  lowest  responsible  bidder  ",  does  not  refer  alone  to 
pecuniary  responsibihty.  Such  responsibility  to  be 
considered  covers  judgment,  skill,  abihty,  integrity, 
capacity  to  perform  and  financial  responsibility/ 
Therefore  one  who  had  previously  defrauded  the 'city 
may  be  held  objectionable.^ 

Whether  a  bidder  on  a  contract  is  responsible  is  a 
matter  to  be  decided  by  the  body  authorized  to  accept 
bids,  with  bona  fide  discretion  and  after  investigation.^ 
And  where  the  statute  requires  a  board  of  education  to 

1  Anderson  v.  Board,  &c.,  122  Mo.  61,  27  S.  W.  610. 

2  Baltimore  v.  Keyser,  72  Md.  106,  19  Atl.  706 ;  State  v.  York, 
&c.,  13  Neb.  57,  12  N.  W.  816. 

3  People  V.  King's,  &c.,  42  Hun  (N.  Y.)  456. 

4  Kelly  V.  Chicago,  62  111.  279 ;  Hoole  v.  Kinkead,  16  Nev.  217 ; 
Interstate,  &c.,  v.  Philadelphia,  164  Pa.  St.  477,  30  Atl.  383 ;  People 
V.  Dorsheimer,  55  How.  Pr.  (N.  Y.)  118;  Clapton  v.  Taylor,  49 
Mo.  App.  117. 

6  Douglass  V.  Com.,  108  Pa.  St.  559. 

6  Schwitzer  v.  Board,  &c.,  79  N.  J.  L.  342,  75  Atl.  447. 

124 


Ch.  IV]  IMPLIED  CONTRACTS  (§  5G 

award  a  contract  to  the  lowest  responsible  bidder,  the 
board  cannot  decide  adversely  as  to  the  responsibility 
of  such  bidder  without  giving  him  notice  and  oppor- 
tunity to  be  heard. ^ 

§  56.   Implied  Contracts. 

Where  a  board  *of  education,  by  statute  made  a 
body  corporate,  appoints  a  committee  to  contract  for 
erection  of  a  schoolhouse,  which  is  done  and  the  building 
accepted  by  the  board,  there  is  an  implied  contract  to 
pay  for  the  building,  and  it  cannot  be  avoided  merely 
because  the  appointment  of  the  committee  was  not 
under  seal.^  But  where  the  school  directors  build  a 
schoolhouse  without  a  vote  of  the  electors  of  their  dis- 
trict, their  acceptance  of  the  building  and  conducting 
of  a  school  therein  does  not  make  their  act  a  legal  one 
nor  create  an  implied  contract  to  pay,  and  the  tax- 
payers are  not  bound  to  pay  a  tax  levied  for  the  pay- 
ment therefor.^ 

The  receipt  and  use  of  goods  unlawfully  purchased  by 
school  officials,  does  not  create  an  implied  contract  to 
pay  by  which  the  district  is  bound.  As,  where  the 
statute  provides  that  school  directors  may  appropriate 
to  the  purchase  of  libraries  and  apparatus  any  surplus 
funds  after  all  necessary  school  expenses  are  paid,  they 
having  no  authority  to  purchase  such  articles  on  credit, 
such  purchases  are  void.  Even  if  the  goods  are  re- 
ceived and  used  the  district  is  not  bound  to  pay  for 

1  Jacobson  v.  Board,  &c.,  64  Atl.  (N.  J.)  609. 

2  Board,  &c.,  v.  Greenbaum,  39  111.  609. 

^  School  Directors,  &c.,  v.  Fogleman,  76  111.  189. 

125 


§  56]  OF   SCHOOL   OFFICERS  [Ch.  IV 

them,  and  the  only  remedy  of  the  seller  is  to  claim  the 
property  itself.^ 

However,  if  a  schoolhouse  is  built  under  a  contract 
repudiated  by  the  district  after  the  district  had  agreed 
to  build  a  schoolhouse,  raised  money  for  that  purpose, 
and  chosen  a  building  committee  who  with  the  in- 
habitants see  the  work  progress  without  objection, 
the  district  is  bound  by  an  implied  contract  to  pay  the 
reasonable  value  of  the  building.-  But  where  a  building 
committee  is  illegally  chosen,  as  it  would  be  if  the 
district  meetings  were  illegally  called,  their  superin- 
tending of  the  erection  of  the  building  does  not  bind  the 
district  nor  raise  an  implied  contract  to  pay.^ 

Where  a  district  and  its  legally  existing  officers, 
entitled  to  interfere,  stand  by  in  silence  while  regular 
service  is  being  rendered  for  the  district  by  one  having 
the  color  of  right,  and  the  service  is  such  as  the  district 
would  have  been  bound  to  pay  for,  the  district  is 
liable  on  an  Lnplied  contract,  and  it  is  no  defense  that 
the  officer  contracting  is  merely  an  officer  de  facto  and 
not  an  officer  de  jure} 

Where  the  statute  requires  that  such  contracts  as 
employing  a  janitor  shall  be  in  writing,  and  a  parol 
contract  is  made  for  such  services,  no  recovery  can  be 
had  on  an  implied  contract.^ 

1  Clark  V.  School  Directors,  78  111.  474 ;  Andrews  v.  Curtis,  2 
Tex.  Civ.  App.  678,  22  S.  W.  72;  Honey  Creek,  &c.,  v.  Barnes,  119 
Ind.  213,  21  N.  E.  747. 

2  Morris  v.  School  District,  &c.,  12  Me.  293. 
*  Jordan  v.  School  District,  &c.,  38  Me.  164. 

4  Rowell  V.  School  District,  59  Vt.  658,  10  Atl.  754. 
s  Taylor  v.  School  District,  &c.,  60  Mo.  App.  372. 

126 


Ch.  IV]  RATIFICATION   OF  CONTRACTS  [§58 

§  57.   Modification  of  Contracts. 

Where  the  statute  requires  contracts  of  the  school 
board  to  be  in  writing,  an  oral  modification  of  such 
contract  by  the  president  of  the  board  is  of  no  effect.^ 
Nor  has  the  president  of  a  board  any  special  right  to 
modify  an  existing  contract  on  behalf  of  the  board. 
Such  right  exists  only  when  given  by  the  board  or  by 
statute,  and  such  act  is  valid  only  when  approved  by 
the  board. ^  A  provision  inserted  by  the  president  of 
the  board  of  directors,  in  a  written  contract,  with- 
out the  authority  of  the  board,  is  not  binding  upon  the 
board  or  district.^ 

Where  a  school  board  in  pursuance  of  a  vote  of  the 
district  authorizing  them  to  erect  a  schoolhouse,  the 
cost  not  to  exceed  a  specified  amount,  lets  a  contract 
for  the  erection  of  a  building  for  a  lesser  amount,  they 
may,  without  further  grant  of  authority  contract  to 
expend  more  money  in  connection  therewith  up  to  the 
specified  amount  voted  by  the  district.^ 

§  58.  Ratification  of  Contracts. 

Authority  to  do  an  act  is  a  condition  precedent  to 
ratification  of  the  act,  therefore  a  school  committee 
cannot  ratify  a  purchase  which  they  have  no  authority 
to  make.''  And  where  a  contract  is  made  by  a  board 
without  authority  it  is  void  and  incapable  of  ratification 

1  Broussard  v.  Verret,  43  La.  An.  929,  9  So.  905. 

2  State  V.  Tiedemann,  69  Mo.  515. 

3  Roland  v.  Reading,  &c.,  161  Pa.  St.  102,  28  Atl.  995. 

"  Edinburgh,  &c.,  v.  Mitchell,  1  S.  D.  593,  48  N.  W.  131. 
5  Glidden,  &c.,  v.  School  District,  &c.,  143  Wis.  617,  128  N.  W. 
285. 

127 


§  58]  OF  SCHOOL  OFFICERS  [Ch.  IV 

by  the  voters  of  a  school  district  except  upon  the  con- 
ditions primarily  necessary  to  a  valid  contract.^  If 
the  district  might  have  authorized  the  contract  in  the 
first  instance,  it  may  ratify  such  contracts  as  are  merely 
not  made  in  conformity  with  law.^ 

And  a  ratification  may  be  by  accepting  benefits,^ 
but  not  where  the  acceptance  cannot  well  be  avoided,* 
nor  where  there  was  no  opportunity  for  the  district  to 
reject  the  benefits,^  nor  where  the}''  had  no  knowledge 
of  the  price  to  be  charged,  or  amount  involved.^ 

Although  a  board  of  directors  exceed  its  powers  in 
making  a  contract,  its  action  may  be  ratified  by  the 
electors  voting  to  authorize  them  to  settle  a  disputed 
claim  growing  out  of  it.'^  But  where  the  contract 
sued  on  is  declared  the  contract  of  the  directors  per- 
sonally, the  district  cannot  ratify  it  as  that  would  make 
a  contract  other  than  the  one  declared  on.^  And  a 
contract  for  building  a  schoolhouse,  which  is  void  as 

1  Markey  v.  School  District,  &c.,  58  Neb.  479,  78  N.  W.  932 ; 
Taylor  v.  Wayne,  &c.,  25  Iowa  447 ;  Brown  v.  School  District,  &c., 
64  N.  H.  303,  10  Atl.  119. 

2  Board  v.  Carolan,  182  111.  119,  55  N.  E.  58;  Trainer  v.  Wolfe, 
140  Pa.  St.  279,  21  Atl.  391 ;  McGillivray  v.  School  District,  &c., 
112  Wis.  354,  88  N.  W.  210. 

3  Andrews  v.  School  District,  &c.,  37  Minn.  96,  33  N.  W.  217 ; 
Bellows  V.  District,  &c.,  70  Iowa  320,  30  N.  W.  582 ;  Johnson  v. 
School,  &c.,  117  Iowa  319,  90  N.  W.  713;  Jones  v.  School  District, 
&c.,  110  Mich.  363,  68  N.  W.  222. 

4  Davis  V.  School  District,  &c.,  24  Me.  349. 

5  Young  V.  Board,  &c.,  54  Minn.  385,  55  N.  W.  1112. 

6  Kane  v.  School  District,  &c.,  52  Wis.  502,  9  N.  W.  459;  Wilson 
V.  School  District,  &c.,  32  N.  H.  118. 

7  Everts  v.  District,  &c.,  77  Iowa  37,  41  N.  W.  478. 

8  Western  Pub.  House  v.  District,  &c.,  84  Iowa  101,  50  N.  W. 
551. 

128 


Ch.  IV]  RATIFICATION  OF  CONTRACTS  [§58 

not  made  by  a  lawful  number  of  directors,  may  be  rati- 
fied by  such  a  number  of  the  board  as  the  law  requires 
to  make  the  original  contract  or  by  the  school  district.^ 
But  the  use  of  a  schoolhouse  by  a  district  is  not  a  ratifi- 
cation of  unauthorized  repairs  upon  it.^ 

It  is  competent  for  a  board  of  education  to  legalize 
and  confirm  acts  of  de  facto  officers  acting  under  a  school 
law  which  has  been  declared  invalid,  if  the  ratifying 
officers  themselves  have  authority  to  perform  such 
acts.  If  a  corporation  ratify  an  unauthorized  act  by 
an  agent,  then,  as  in  the  case  of  natural  persons,  the 
ratification  is  equal  to  a  prior  authority;  and  an  act 
done  before  may  be  adopted  after  the  incorporation,  so 
as  to  be  equally  binding  and  conclusive.  As  a  natural 
person  may  adopt  and  take  the  benefit  of  an  act  in 
relation  to  property  in  which  at  the  time  of  its  oc- 
currence he  had  no  interest  whatever,  but  in  which  he 
subsequently  acquires  an  interest,  so  may  a  corporation 
on  contracts  made  prior  to  its  existence  act  in  ratifica- 
tion.^ But  a  subsequent  board  of  directors  cannot 
ratify  an  illegal  act  of  a  preceding  board ;  *  and  un- 
authorized expenditures  in  the  construction  of  a  school- 
house  are  not  ratified  by  the  taking  possession  and  use  of 
it,  so  as  to  make  the  district  liable  therefor.^  But  a 
board  of  directors,  by  acts  in  respect  thereto,  may 

1  Sullivan  v.  School  District,  &c.,  39  Kan.  347,  18  Pac.  287; 
School  District,  &c.,  v.  Sullivan,  48  Kan.  624,  29  Pac.  1141. 

2  Da\is  V.  School  District,  &c.,  24  Me.  349. 

^  Dubuque,  &c.,  v.  City  of  Dubuque,  13  Iowa  555 ;   Goody  v. 
Colchester,  &c.,  15  Eng.  L.  &  E.  596. 
4  GHdden  v.  Hopkins,  47  lU.  525. 
«*  Turney  v.  Bridgeport,  55  Conn.  412,  12  Atl.  520. 

129 


§58]  OF  SCHOOL  OFFICERS  [Ch.  IV 

ratify  a  contract  informally  entered  into  and  which 
they  have  power  to  make.^ 

Where  the  inhabitants  of  a  district  having  voted 
to  build  a  schoolhouse  and  appointed  a  committee  for 
that  purpose,  the  committee  made  a  contract  with  an 
individual  to  build  the  house  ;  subsequently  the  district 
voted  to  rescind  their  vote  relative  to  the  building  of 
a  house,  and  appointed  a  committee  to  notify  the  con- 
tractor of  such  vote  being  passed,  and  to  forbid  him 
from  proceeding  to  execute  the  contract ;  the  com- 
mittee gave  the  contractor  notice  accordingly,  and 
he  thereupon  notified  the  committee  that  he  should 
abandon  the  contract  unless  they  became  personally 
responsible  to  him ;  the  committee  then  made  their 
bond  to  the  contractor  by  which  they  bound  themselves 
individually  to  pay  for  the  house,  and  the  contractor 
proceeded  and  built  the  house  according  to  his  contract, 
and  the  committee  paid  him  therefor  out  of  their  own 
funds.  In  an  action  by  the  committee  against  the 
district  for  the  money  so  paid  it  was  held  that  the 
plaintiffs  were  not  entitled  to  recover,  although 
the  prudential  committee  of  the  district  had  caused 
the  house  so  built  to  be  used  for. the  purposes  of  a  school 
for  the  district,  such  occupancy  and  use  did  not  con- 
stitute a  ratification. 2  But  where  a  district  appointed 
a  committee  of  three  to  act  in  building  a  schoolhouse, 
one  declining  to  participate  the  other  two  performed 
the  work,  it  was  held  that  the  subsequent  use  and 
occupancy  constituted  a  ratification  of  the  acts  of  the 

^  Stevenson  v.  District,  &c.,  35  Iowa  462. 

2  Hayward  v.  School  District,  &c.,  2  Cush.  (Mass.)  419. 

130 


Ch.  IV]  ACTS  ULTRA  VIRES  I§  59 

two  members  of  the  committee.^  And  an  unauthorized 
act  in  spending  money  in  excess  of  an  authorized 
amount  may  be  ratified  by  a  district  at  a  district 
meeting.^ 

Where  the  statute  provides  that  certain  contracts 
with  a  school  district  can  be  legally  made  only  when 
authorized  by  vote  of  the  electors  of  the  district,  a 
contract  not  so  made  under  which  goods  are  furnished 
and  used  will  not  be  ratified  by  such  use  of  the  goods. ^ 
But  the  use  for  six  years,  of  supplies  furnished  a  school 
district  on  an  invalid  contract,  with  full  knowledge  of 
the  facts,  and  with  no  offer  to  return  such  supplies 
until  sued  for  the  purchase  price,  is  a  ratification  of  the 
contract.^ 

When  a  contract  is  rendered  invalid  by  the  fact  that 
no  legal  notice  was  given  of  the  directors  meeting  at 
which  the  contract  was  made,  the  contract  being  one 
within  scope  of  the  authority  of  the  school  directors, 
was  subject  to  ratification  at  a  meeting  legally  held.^ 

§  59.   Acts  Ultra  Vires. 

If  a  school  board  exceeds  its  authority  by  contracting 
for  an  expenditure  greater  than  that  authorized,  such  act 
is  ultra  vires. ^  And  a  school  board  cannot  bind  the 
district    by    drawing,    accepting    and    issuing    orders 

1  Fisher  v.  School  District,  &c.,  4  Cush.  (Mass.)  494. 

2  Sanborn  v.  School  District,  &c.,  12  Minn.  17. 

3  First  Nat'l  Bk.  v.  Whisenhunt,  94  Ark.  583,  127  S.  W.  968. 
*  Richards  v.  School,  &c.,  132  Iowa  612,  109  N.  W.  1093. 

5  School  District  v.  Goodwin,  81  Ark.  143,  98  S.  W.  696. 
^  Perkins  v.  Newark,  &c.,  161  Fed.  767 ;    Rockland  County  v. 
Grear,  57  Misc.  Rep.  (N.  Y.)  472. 

131 


§60]  OF  SCHOOL  OFFICERS  [Ch.  IV 

against  a  proposed  building  fund  which,  although  duly 
voted,  has  not  yet  been  raised.^  Nor  can  the  board 
bind  the  district  in  excess  of  the  amount  they  have 
voted. ^ 

Subject  to  restrictions  imposed  by  statute,  it  is  com- 
petent for  the  qualified  electors  of  a  district,  when  law- 
fully assembled,  to  decide  upon  what  sort  of  a  school- 
house  should  be  built,  and  also  the  extent  of  the 
expenditure  thereupon ;  and  having  done  so,  that  de- 
cision cannot  legally  be  interfered  with  by  the  school 
board.  If  in  the  opinion  of  the  board,  changes  or  an 
increased  expenditure  be  deemed  advisable,  a  meeting 
of  the  electors  should  be  called,  and  their  direction  in 
the  matter  obtained.  Where  the  board,  without  au- 
thority given  by  the  electors,  or  by  statute,  contract  a 
debt  for  which  they  have  no  authority,  a  recovery 
cannot  be  had  against  the  district.^ 

§  60.   Duties  and  Liability  of  Treasurer. 

It  is  usually  the  duty  of  a  treasurer  of  a  school  board 
to  hold  all  moneys  of  the  district,  and  to  pay  them  out 
only  upon  vouchers  signed  by  the  proper  officers.  He 
is  usually  required  in  his  bond  to  not  merely  exercise 
due  care  and  diligence  in  the  discharge  of  his  duty, 
but  to  perform  it  absolutely,  without  conditions  or 

1  School  District  v.  Stough,  4  Neb.  357 ;  Davis  v.  Board,  &c.,  38 
W.  Va.  382,  18  S.  E.  588. 

2  Capital  Bank  v.  School  District,  &c.,  63  Fed.  938 ;  Capital 
Bank  v.  School  District,  &c.,  1  N.  D.  479,  48  N.  W.  363 ;  Turney  v. 
Bridgeport,  55  Conn.  412, 12  Atl.  520 ;  Wilson  v.  School  District,  &c., 
32  N.  H.  118;  School  District,  &c.,  v.  Western  Tube  Co.,  5  Wyo. 
185,  38  Pac.  922. 

3  Gehling  v.  School  District,  &c.,  10  Neb.  239,  4  N.  W.  1023. 

132 


Ch.  IV]  DUTIES  OF  TREASURER  [§  60 

exceptions,  and  he  will  not  be  relieved  from  his  contract 
by  showing  any  degree  of  diligence  or  care  which  falls 
short  of  absolute  compliance  with  the  terms  of  his  con- 
tract as  shown  in  his  bond.^  Against  a  bond  to  this 
effect  a  treasurer  is  liable  for  money  stolen  from  him, 
and  the  directors  of  a  school  district  have  no  power, 
in  absence  of  a  consideration,  to  release  him  from 
liability  on  any  debt  which  he  may  owe  to  the  dis- 
trict.^ And  it  has  been  decided  that  depositing  funds 
in  a  solvent  bank  even  by  the  advice  of  State  and 
County  Superintendents  and  County  Board,  if  loss 
results,  is  no  defense  to  a  depositor.^ 

There  is  some  conflict  in  the  decisions  as  to  the  re- 
sponsibility of  public  officers  and  their  sureties  for  the 
loss  of  public  moneys  without  negligence  or  fault  on 
the  part  of  the  officers.  While  in  some  cases  the  rule 
of  responsibility  of  bailees  for  hire  has  been  applied, 
exonerating  officers  who  have  been  found  guiltless  of 
negligence,  this  measure  of  responsibility  is  not  generally 
accepted.  The  great  weight  of  authority  in  this 
country  will  sustain  the  general  propositions,  with  re- 
spect to  the  liability  of  such  officers  and  their  sureties 
for  the  loss  of  public  moneys,  that  where  the  statute, 
in  direct  terms  or  from  its  general  tenor,  imposes  the 
duty  to  pay  over  public  moneys  received  and  held 

1  U.  S.  V.  Prescott,  3  How.  (U.  S.)  578 ;  Muzzy  v.  Shattick,  et  al, 
I  Denio  (N.  Y.)  233;  Com.  v.  Comly,  3  Pa.  St.  372;  State  v. 
Harper,  6  Ohio  St.  607. 

2  District,  &c.,  v.  Morton,  37  Iowa  550 ;  Bluff  Creek  v.  Hardin- 
brook,  et  al,  40  Iowa  130;  Board,  &c.,  v.  Jewell,  44  Minn.  427,  46 
N.  W.  914. 

3  Inglis  V.  State,  61  Ind.  212. 

133 


§  60]  OF  SCHOOL  OFFICERS  [Ch.  IV 

as  such,  and  no  condition  limiting  that  obHgation  is 
discoverable  in  the  statute,  the  obligation  thus  imposed 
upon  and  assumed  by  the  officer  will  be  deemed  to  be 
absolute,  and  the  plea  that  the  money  has  been  stolen 
or  lost  without  his  fault  does  not  constitute  a  defense 
to  an  action  for  its  recovery ;  that  the  rule  of  responsi- 
bility of  bailees  for  hire  is  not  applicable  in  such  cases ; 
that  where  the  condition  of  the  bond  is,  that  the  officer 
will  faithfully  discharge  the  duties  of  the  office,  and 
where  the  statute,  as  before  stated,  imposes  the  duty 
of  payment  or  accountability  for  the  money,  without 
condition,  the  obligors  in  the  bonds  are  subject  to  the 
same  degree  of  responsibility ;  and  that  the  reasons 
upon  which  these  propositions  rest  are  to  be  found  both 
in  the  unqualified  terms  of  the  contract,  and  in  con- 
sideration of  public  policy.^  And  even  where  the 
treasurer  of  a  school  district  without  fault  on  his  part, 
deposits  school  funds  in  a  bank  which  becomes  in- 
solvent, he  becomes  liable  for  the  amount  on  his  official 
bond.^ 

A  treasurer  of  a  school  district  is  also  responsible 
for  his  own  negligence  as  where  a  note  made  payable 

1 U.  S.  V.  Dashiel,  4  Wall.  (U.  S.)  182 ;  Hancock  v.  Hazzard,  12 
Cush.  (Mass.)  112;  New  Provklence  v.  McEachron,  35  N.  J.  L. 
528 ;  Com.  v.  Comly,  3  Pa.  St.  372 ;  Thompson  v.  Board,  30  111. 
99 ;  Morbeck  v.  State,  28  Ind.  86 ;  Ward  v.  School  District,  10  Neb. 
293,  4  N.  W.  1001 ;  Wilson  v.  Wichita  Co.,  67  Tex.  647,  4  S.  W.  67 ; 
State  V.  Nevm,  19  Nev.  162,  7  Pac.  650 ;  State  v.  Moore,  74  Mo.  413 ; 
Commissioners  v.  Lineberger,  3  Mont.  231 ;  Board,  &c.,  v.  Jewell, 
44  Minn.  427,  46  N.  W.  914 ;  Bluff  Creek  v.  Hardinbrook,  et  al, 
40  Iowa  130. 

2  State  V.  Powell,  67  Mo.  395 ;  Ward  v.  School  District,  10  Neb. 
293,  4  N.  W.  1001. 

134 


Ch.  IV]  EMPLOYING  COUNSEL  [§  Gl 

to  the  school  fund  is  not  presented  by  the  township 
treasurer  to  the  maker  thereof  within  the  time  fixed 
by  law,  and  the  sureties  are  released,  the  treasurer  be- 
comes hable  on  his  bond  for  the  amount  if  the  maker 
fails  to  pay.^ 

§  61.   Employing  Coimsel. 

Wliere  the  statute  authorizes  a  school  board  or 
officer  to  employ  counsel  in  suits  brought  by  or  against 
the  district,  it  does  not  thereby  authorize  such  em- 
ployment in  a  case  of  appeal  from  the  decision  of  a 
board  of  directors  to  a  County  or  State  Superintendent.^ 

Without  vote  of  the  district  to  that  effect,  and  in 
absence  of  a  statute  so  authorizing,  an  officer  of  a 
school  district  has  no  authority  to  employ  counsel  in 
the  name  of  the  district  to  defend  a  suit  against  an 
officer  of  the  district  in  which  the  district  may  be 
interested.  And  the  fact  that  the  officers  of  the  dis- 
trict, and  the  voters  of  the  district  generally,  knew  of 
the  pendency  and  progress  of  the  suit  has  no  legal 
tendency  to  show  any  acquiescence  in,  or  adoption  of, 
the  employment  of  the  counsel.^ 

But  it  has  been  held  that  school  funds  may  be  used 
by  school  directors  in  the  employment  of  an  attorney 
to  aid  in  preserving  and  protecting  school  rights.^ 

1  House  V.  Trustees,  &c.,  83  111.  368. 

2  Templin  v.  District,  &c.,  36  Iowa  411. 

^  Harrington  v.  School  District,  &c.,  30  Vt.  155. 

4  Taylor  v.  Matthews,  10  Ga.  App.  852,  75  S.  E.  166. 


135 


CHAPTER  V 

OF  SCHOOL  TEACHERS 

§  62.   Duties  of  Teachers. 

A  school  teacher,  or  schoolmaster,  is  one  employed 
in  teaching  a  school,^  and  a  teacher's  duties  are  to 
teach  pupils  what  has  been  undertaken,  having  a 
special  care  over  their  morals. 

The  acquiring  of  learning  is  not  the  only  object  of 
our  public  schools.  To  become  good  citizens,  children 
must  be  taught  self-restraint,  obedience  and  other 
virtues.  Free  political  institutions  are  possible  only 
where  the  great  body  of  the  people  are  moral,  intelli- 
gent and  habituated  to  self-control  and  to  obedience 
to  lawful  authority.  The  permanency  of  such  in- 
stitutions depends  largely  upon  the  efficient  instruc- 
tion and  training  of  children  in  these  virtues.  It  is 
to  secure  this  permanency  that  the  State  provides 
schools  and  teachers.  School  teachers,  therefore,  have 
important  duties  and  functions.  Much  depends  on 
their  abihty,  skill  and  faithfulness.  They  must  train, 
as  well  as  instruct,  their  pupils.^ 

1  Bouv.  L.  Diet. 

2  Patterson  v.  Nutter,  78  Me.  509,  7  Atl.  273. 

136 


Ch.  V]  DUTIES  OF  TEACHERS  [§  62 

The  duty  of  a  teacher  to  instruct  the  pupils  in  his 
school  is  founded  on  his  contract  with  the  school  direc- 
tors, and,  there  being  no  privity  of  contract  between 
the  parents  of  pupils  sent  to  a  public  school  and  the 
teacher,  a  teacher  of  such  school  is  not  liable  to 
any  action  by  a  parent  for  refusing  to  instruct  his 
children.^ 

To  facilitate  the  performance  of  the  duties  of  teachers, 
reasonable  rules  may  be  made  by  the  school  authori- 
ties; and  the  rule  of  a  board  of  education  that  the 
teachers  and  other  school  employees  shall  reside  within 
the  city  and  county  during  their  term  of  employment 
is  a  reasonable  one.^ 

Where  the  statute  requires  that  a  teacher  shall 
make  a  report  of  text-books  used,  attendance  of  pupils, 
branches  taught  or  other  details,  to  the  superintending 
coEomittee,  lawful  payment  for  the  services  of  the 
teacher  cannot  be  made  until  such  report  is  made.^ 
And  the  school  committee  have  no  power  to  waive 
the  rendering  of  a  report  that  is  absolutely  required 
under  the  statute.'*  But  reports  for  the  time  sued  for 
need  not  be  made  when  there  is  nothing  to  report 
for  the  reason  that  during  that  time  the  school  was 
closed  by  the  directors.^ 

1  Spear  v.  Cummings,  23  Pick.  (Mass.)  224. 

2  Stuart  V.  Board,  &c.,  161  Cal.  210,  118  Pac.  712. 

3  Moultonborough  v.  Tuttle,  26  N.  H.  470 ;  School  Commissioners 
V.  Adams,  43  Md.  349;  School  Directors  v.  First  National  Bank, 
3  111.  App.  349 ;  Owen  v.  Hay,  107  Ind.  351,  8  N.  E.  220.  But 
see,  Crosby  v.  School  District,  &c.,  35  Vt.  623;  Scott  v.  School 
District,  46  Vt.  452. 

^  Jewell  V.  Abington,  2  Allen  (Mass.)  592. 

5  Rudy  V.  School  District,  &c.,  30  Mo.  App.  113. 

137 


§  63]  OF   SCHOOL   TEACHERS  [Ch.  V 

§  63.    Qualifications.  —  Certificates. 

In  nearly  all  States  a  teacher  in  a  public  school 
before  entering  upon  the  duties  as  a  public  school 
teacher  must  obtain  from  the  proper  official  a  certifi- 
cate of  qualification  to  perform  such  duties ;  ^  and 
where  the  statute  makes  this  requirement  it  is  manda- 
tory and  cannot  be  waived. ^  If  the  statute  does  not 
require  the  teacher's  certificate  to  state  upon  its  face 
that  an  examination  was  had,  or  what  it  consisted  of, 
it  is  sufficient  for  the  certificate  to  state  that  the  person 
to  whom  it  is  issued  is  qualified  to  teach  the  branches 
enumerated.^  Where  no  form  is  prescribed  in  the 
statute,  it  is  sufficient  for  the  proper  official  to  certify 
that  the  party  was  examined  and  approved  by  him 
on  a  given  day.^ 

There  is  no  legal  distinction  between  the  granting 
of  a  license  to  teach  and  the  act  of  issuing  a  certificate 
of  that  fact.  The  terms  are  convertible,  and  the 
"  licensing  "  implies  the  issuing  to  an  applicant  of  a 
written  permission  to  teach  in  the  public  schools.^ 

Where  the  original  certificate  expires  by  statutory 
limitation,  no  second  examination  of  a  teacher  is 
necessary  before  the  granting  of  a  renewal  certificate.® 
And  even  where  there  is  a  statutory  limitation  on  a 
teacher's   certificate   which   requires   the   further   ap- 

^  Stanhope  v.  School  Directors,  42  111.  App.  570. 
2Kuenster  v.  Board,  &c.,  134  111.  165,  24  N.  E.  609;   Welch  v. 
Brown,  30  Vt.  586. 

3  Union,  &c.,  v.  Sterricker,  86  111.  595. 

4  Wells  V.  School  District,  &c.,  41  Vt.  354. 

5  Elmore  v.  Overton,  104  Ind.  548,  4  N.  E.  197. 
«  Doyle  V.  School  Directors,  36  111.  App.  653. 

138 


Ch.  V]  QUALIFICATIONS  — CERTIFICATES  [§63 

proval  of  the  proper  official  to  be  endorsed  thereon, 
it  has  been  held  that  an  oral  approval  and  declaration 
of  competency  of  the  teacher  on  part  of  the  proper 
official  is  a  sufficient  compliance  with  the  spirit  of  the 
law.^ 

The  certificate  of  a  school  teacher  is  in  the  nature 
of  a  commission  and  cannot  be  attacked  collaterally, 
especially  in  absence  of  fraud. ^  And  where  the  board 
of  examiners  arbitrarily  refuse  to  grant  a  certificate 
to  a  teacher,  a  mandamus  will  lie  to  compel  such 
granting  as  a  ministerial  act,  but  where  the  board 
has  reasonable  grounds  for  refusing  such  certificate 
its  discretion  will  not  be  controlled.^ 

If  a  teacher  holds  a  valid  certificate  at  the  time  of 
making  a  valid  contract  to  teach  and  after  entering 
upon  the  duties  of  teaching  the  certificate  expires, 
recovery  may  be  had  on  the  contract  for  services  per- 
formed, both  before  and  after  the  expiration  of  the 
certificate.^  And  if  a  teacher  has  not  the  necessary 
certificate  at  the  time  of  making  a  contract  to  teach, 
it  is  sufficient  if  he  procures  it  before  entering  upon 
his  duties,  unless  the  statute  makes  the  holding  of 
such  certificate  a  condition  precedent  to  the  right 
to  make  such  contract.^    And  it  has  been  held  that 


1  Barnhart  v.  Bodenhammer,  31  Mo.  319. 

^  Union,  &c.,  v.  Sterricker,  86  111.  595 ;  State  v.  Grosvenor,  19 
Neb.  494,  27  N.  W.  728 ;  Blanchard  v.  School  District.  29  Vt.  433. 

3  Flynn  v.  Barnes,  156  Ky.  498,  161  S.  W.  523. 

4  Holman  v.  School  District,  &c.,  34  Vt.  270. 

5  Pollard  V.  School  District,  &c.,  65  111.  App.  104;  Crabb  v. 
School  District,  &c.,  93  Mo.  App.  254 ;  Youmans  v.  Board,  &c.,  13 
Ohio  Cir.  Ct.  207.     Contra,  by  statute :   McCloskey  v.  School  Dis- 

139 


§  63]  OF   SCHOOL  TEACHERS  [Ch.  V 

even  where  the  statute  provides  that  any  contract 
for  teaching  school  shall  be  null  and  void  if  the  teacher 
fails  to  obtain  a  certificate  of  qualification  before  the 
commencement  of  school,  the  conducting  of  the  school 
by  the  teacher  with  the  consent  and  approbation  of 
the  prudential  committee,  after  the  teacher  had  ob- 
tained a  certificate  of  qualification,  was  equivalent 
to  making  a  new  contract  to  commence  then  upon  the 
same  terms  as  the  original  contract.^ 

The  production  of  a  certificate  of  qualification  is  a 
prerequisite  to  legal  employment,  and  therefore,  if 
the  proper  officers  wantonly  refuse  to  examine  the 
applicant,  he  has  no  authority  to  teach  and  recover 
compensation  for  his  services  without  the  required 
certificate,  and  a  school  warrant  issued  to  an  unlicensed 
teacher  is  invalid.  If  a  town  wishes  to  avail  itself 
of  the  want  of  the  required  certificate  as  a  defense, 
it  has  the  burden  to  show  the  want  of  such  certificate. ^ 

A  certificate  of  qualification  is  held  to  be  prima  facie 
evidence  of  that  qualification ;  ^  therefore  the  owner  of 
a  certificate  is  not  subject  to  attack  in  an  action  for 
compensation  for  services  as  a  school  teacher,^  unless 
it  be  on  the  grounds  of  fraud  or  collusion.^ 

trict,  &c.,  134  Mich.  235,  96  N.  W.  18 ;  O'Connor  v.  Francis,  42 
N.  Y.  App.  Div.  375,  59  N.  Y.  S.  28. 

1  Scott  V.  School  District,  &c.,  46  Vt.  452 ;  Smith  v.  School  Dis- 
trict, 69  Mich.  589,  37  N.  W.  567.  But  see,  Butler  v.  Haines,  79 
Ind.  575.  2  Roife  y.  Cooper,  20  Me.  154. 

^  Neville  v.  School  Directors,  36  111.  71 ;  School  Directors  v. 
Reddick,  77  111.  628;  Barngrover  v.  Maack,  46  Mo.  App.  407; 
Blanchard  v.  School  District,  29  Vt.  433. 

^  Doyle  V.  School  Directors,  36  111.  App.  653. 

5  Kimball  v.  School  District,  23  Wash.  520,  63  Pac.  213. 

140 


Cfl.  V]         QUALIFICATIONS  —  CERTIFICATES  [§  63 

A  teacher's  certificate  of  qualification,  legally  ob- 
tained, is  'prima  facie  evidence  of  qualification  to 
perform  the  duties  of  a  teacher.  The  law  does 
not  require  the  highest  grade  of  talent  or  other 
quahfications  in  a  teacher,  but  only  fair  average 
abihty,  and  the  usual  application  to  the  discharge  of 
duties,  in  order  that  the  contract  be  fulfilled.  And 
if  the  directors  dismiss  a  teacher  for  incompetency 
or  neglect  of  duty,  it  devolves  upon  them  to  prove  the 
charge.^ 

A  school  officer  is  never  liable  for  a  mistake  in 
judgment,  but  will  be  liable  for  willfully-wrong  and 
malicious  acts,  for  example,  in  the  wrongful  with- 
holding of  a  certificate,^  or  for  the  wrongful  revo- 
cation of  a  certificate.^  In  all  acts  of  school  officers 
malice  must  be  shown  or  an  action  will  not  lie,  it 
being  not  sufficient  that  the  mistake  be  merely  an 
erroneous  act;  but,  where  the  statute  requires  that 
the  teacher  shall  be  summoned  for  examination 
upon  preferred  charges  before  his  license  may  be 
revoked,  the  revocation  without  such  notice  will  be 
actionable.^ 

An  unlicensed  teacher  generally  cannot  recover 
for  services  rendered  under  a  contract  for  employ- 
ment in  a  public  school  as  a  teacher  inasmuch  as 
such  contracts  are  generally  void.^    But  the  authority 

1  NeviUe  v.  School  Directors,  77  111.  628. 

2  Elmore  v.  Overton,  104  Ind.  548,  4  N.  E.  197. 

3  Lee  V.  Huff,  61  Ark.  494,  33  S.  W.  846. 

4  Lee  V.  Huff,  61  Ark.  494,  33  S.  W.  846. 

5  Wells  V.  People,  71  111.  532;  Butler  v.  Haines,  79  Ind.  575; 
Blandon  v.  Moses,  29  Hun  (N.  Y.)  606.     The  contract  being  void, 

141 


§  63]  OF   SCHOOL   TEACHERS  [Ch.  V 

of  an  unlicensed  teacher  is  not  to  be  questioned  by- 
pupils  or  parents.^ 

If  a  judgment  is  recovered  against  a  school  district 
in  favor  of  an  unlicensed  teacher  for  compensation 
for  services  as  a  teacher,  the  payment  thereof  may 
be  restrained  by  injunction  at  the  suit  of  any  person 
interested  as  a  taxpayer.^  But  a  County  Superin- 
tendent has  no  power  as  such  to  sue  out  an  injunction 
for  this  purpose.^  It  has  been  held,  however,  that 
the  employment  of  an  unqualified  teacher  is  a  necessity 
and  that  the  school  board  is  authorized  to  employ  one 
who  has  not  a  proper  certificate,  if  the  board  is  satis- 
fied that  the  teacher  is  otherwise  qualified,  and  to  pay 
such  teacher  out  of  the  money  belonging  to  the  district.* 

An  action  by  a  school  teacher  for  wages  claimed  to 
be  due,  may  be  maintained  only  when  the  teacher 
shows  that  he  is  licensed  to  teach  as  provided  by  law.^ 
And  a  teacher  who  accepts  a  license  to  teach  does  so 
with  the  implied  acceptance  of  all  conditions  imposed 
by  statute,  and  the  most  that  a  teacher  can  ask  upon 
a  revocation  of  a  license  is  that  the  proceedings  shall 


no  recovery  can  be  had  thereon;  Stevenson  v.  School,  &c.,  87  111. 
255 ;  Putnam  v.  Irvington,  69  Ind.  80 ;  Brown  v.  Chesterville,  63 
Me.  241;  Bryan  v.  Fractional,  &c.,  Ill  Mich.  67,  69  N.  W.  74; 
Ryan  v.  School,  &c.,  27  Minn.  433,  8  N.  W.  146 ;  Barr  v.  Deniston, 
19  N.  H.  170 ;  Goose  River  Bank  v.  Willow  Lake,  &c.,  1  N.  D.  26 ; 
Davis  V.  Harrison,  140  Ky.  520,  131  S.  W.  272. 

1  Kidder  v.  Chellis,  59  N.  H.  473. 

2  Barr  v.  Deniston,  19  N.  H.  170. 

3  Perkins  v.  Wolf,  17  Iowa  228. 

4  Hale  V.  Risley,  69  Mich.  599,  37  N.  W.  570. 

5  Kester  v.  School  District,  &c.,  48  Wash.  486,  93  Pac.  907 ;  Davis 
V.  Harrison,  140  Ky.  520,  131  S.  W.  272. 

142 


Ch.  V]  CONTRACT  OF  EMPLOYMENT  [§  64 

conform  to  law.  In  the  revocation  of  such  license 
the  bias  and  want  of  judicial  capacity  of  the  County 
Superintendent  is  no  ground  for  interference  by  the 
courts.^ 

Where  the  statute  provides  that  County  Superin- 
tendents may  endorse  unexpired  teachers'  certificates 
issued  in  other  counties  the  duty  to  do  so  is  impera- 
tive.^ And  a  writ  of  mandamus  may  be  used  to  compel 
an  official  to  examine  an  applicant,^  and  to  compel 
the  issuance  of  a  certificate/  and  also  to  compel  recog- 
nition of  a  teacher,^  and  to  compel  the  employment 
of  a  duly  licensed  teacher.^ 

§  64.   Contract  of  Employment. 

In  contracting  for  the  employment  of  a  teacher  it 
is,  of  course,  necessary  that  all  statutory  regulations 
as  to  formation  of  contracts  be  followed,^  and  where  a 
written  contract  with  a  teacher  is  required  under  the 
statute,  no  other  form  of  contract  is  legal. ^  School 
officers  acting  officially  and  within  their  jurisdiction 
bind  the  quasi  corporation  of  which  they  are  represent- 
atives ;  and  their  legal  contracts  concerning  matters 
within  the  duties  of  their  office  may  be  enforced  against 


1  Stone  V.  Fritts,  169  Ind.  361,  82  N.  E.  792. 

2  Johnson  v.  Connelly,  88  Kan.  861,  129  Pac.  1192. 

3  Stroup  V.  Beer,  25  Pa.  Co.  Ct.  1. 

4  Keller  v.  Hewitt,  109  Cal.  146,  41  Pac.  871. 

5  Pearsall  v.  Woods,  50  S.  W.  (Tex.)  959. 

6  Brown  v.  Owen,  75  Miss.  319,  23  So.  35. 

^  Place  V.  District,  &c.,  56  Iowa  573,  9  N.  W.  917 ;  Dyberry,  &c., 
V.  Mercer,  115  Pa.  St.  559,  9  Atl.  64. 

8  Griggs  V.  School  District,  &c.,  87  Ark.  93,  112  S.  W.  215. 

143 


§  64]  OF   SCHOOL   TEACHERS  [Cn.  V 

their  successors.^  The  contracts  of  a  de  facto  officer 
are  vaUd  even  though  he  is  not  an  officer  de  jure.^ 

Where  the  rules  and  regulations  of  the  district  fix 
the  time  the  schools  are  to  be  opened  and  such  rules 
and  regulations  are  made  a  part  of  the  contract,  the 
contract  will  not  be  invalid  because  it  does  not  state 
the  time  the  school  is  to  be  taught.^  And  where  the 
statute  names  the  first  four  grades  as  the  primary 
grades,  a  teacher  cannot  be  required,  under  a  contract 
to  teach  the  primary  department,  to  teach  higher 
grades  although  the  classes  be  sent  to  the  primary 
room  for  that  purpose.^ 

The  contract  of  a  teacher  being  for  his  personal 
services,  he  is  not  at  liberty  to  employ  a  substitute 
in  the  performance  of  his  contract.^  And  the  hiring 
of  a  school  teacher  at  a  lesser  wage  than  is  provided 
by  a  minimum  wage  law  is  a  crime ;  and  such  law  is 
not  unconstitutional.^ 

Where  school  directors  employ  a  teacher  in  the 
manner  prescribed  by  law  and  the  officers  violate  an 
executory  contract  with  the  teacher,  which  is  made 
within  their  authority,  the  school  district  will  be 
liable  even  if  no  benefit  has  been  received  by  the 
district  under  the  contract.^     And  an  invalid  contract 

1  Wait  V.  Ray,  67  N.  Y.  36. 

2  Milford  V.  Powner,  126  Ind.  528,  26  N.  E.  484 ;  Woodbury  v. 
Knox,  74  Me.  462. 

3  Burkhead  v.  Independent,  &c.,  107  Iowa  29,  77  N.  W.  491, 

4  Butler  V.  Windsor,  155  Wis.  626,  145  N.  W.  180. 

5  School  Directors  v.  Hudson,  88  111.  563. 

6  Bopp  V.  Clark,  165  Iowa  697,  147  N.  W.  172. 

^  Jackson,  &c.,  v.  Shera,  8  Ind.  App.  330,  35  N.  E.  842 ;  Mingo 
V.  Colored  Common  School,  &c.,  113  Ky.  475,  68  S.  W.  483. 

144 


Ch.  V]  CONTRACT  OF  EMPLOYMENT  [§  64 

of  employment  may  be  ratified  by  the  knowledge 
and  conduct  of  school  directors.^ 

Wliere  the  term  of  service  is  legally  specified  in  the 
contract,  a  teacher  cannot  claim  employment  for  a 
longer  period. ^  But  where  a  teacher  is  employed 
from  a  specific  date  and  the  duration  of  the  period 
is  not  specified,  he  will  be  entitled  to  continue  during 
the  school  year  subject  to  any  condition  of  the  contract.^ 

It  being  the  duty  of  a  school  board  to  prepare  a 
proper  form  of  contract  with  a  teacher,  it  is  no  defense 
to  a  mandamus  brought  against  the  chairman  of  such 
board  to  compel  him  to  sign  such  contract  that  the 
contract  was  not  in  proper  form.* 

It  is  the  business  of  school  districts  to  keep  up  public 
schools,  and  it  is  the  duty  of  officers  to  provide  teachers, 
and  to  make  contracts  with  them.  It  is  their  duty 
to  know  under  what  conditions  a  teacher,  whom  they 
know  to  be  teaching,  claims  to  act.  And  a  board  by 
abstaining  from  holding  meetings,  and  from  doing 
its  duty,  cannot  set  up  its  own  wrong  in  defense  of 
an  honest  claim.  Therefore  a  contract  with  a  teacher 
need  not  be  signed  by  the  school  board  simultaneously, 
in  order  to  make  valid  a  contract  upon  which  services 
have  been  rendered;  and  a  contract  valid  upon  its 
face,  actually  carried  out  with  the  acquiescence  of  all 
concerned,   cannot  be  subsequently  repudiated.^    So 

1  School  District,  &c.,  v.  Jackson,  110  Ark.  262,  161  S.  W.  153. 

2  Marion  v.  Board,  &c.,  97  Cal.  606,  32  Pac.  643. 

3  Butcher  v.  Charles,  95  Tenn.  532,  32  S.  W.  631. 
*  Davis  V.  Harrison,  140  Ky.  520,  131  S.  W.  272. 

5  HoUoway  v.  School  District,  &c.,  62  Mich.  153,  28  N.  W.  764; 
School  District  v.  Stone,  14  Colo.  App.  211,  59  Pac.  885. 

145 


§  64]  OF   SCHOOL   TEACHERS  [Ch.  V 

a  contract  signed  by  a  teacher  subsequent  to  the 
meeting  at  which  the  directors  met  together  and 
participated  in  the  selection  of  the  teacher  and  decided 
upon  the  wages  and  time  of  employment,  is  valid. ^ 
But  where  the  trustees  separately  agree  to  employ  a 
teacher,  and  subsequently  as  a  board  assembled,  vote 
to  repudiate  the  agreement,  the  teacher  is  without 
redress  inasmuch  as  the  contract  was  void  and  against 
public  policy.^ 

Where  the  statute  requires  that  a  teacher's  contract 
shall  be  in  writing,  a  teacher  cannot  recover  on  a 
quantum  meruit  for  services  rendered  on  an  oral  con- 
tract.^ Such  statute  is  mandatory,*  but  requirement 
of  a  duplicate  contract  is  directory  only.^  And  an 
oral  contract  to  continue  teaching  school  after  the 
expiration  of  a  required  written  contract  is  unenforce- 
able, and  no  recovery  can  be  had  for  services  rendered 
upon  such  oral  contract.^ 

Where,  however,  the  contract  is  not  required  to  be 
in  writing  a  teacher  who  is  lawfully  employed  in 
absence  of  a  contract,  is  entitled  to  receive  the  reason- 
able value  of  the  service  rendered  upon  a  quantum 
meruit  J    And  if  one,  without  authority,  enter  upon 

1  School  District,  &c.,  v.  Allen,  83  Ark.  491,  104  S.  W.  172. 

2  McGinn  v.  Willey,  6  Cal.  App.  Ill,  91  Pac.  423. 

3  Lee  V.  York,  &c.,  163  Ind.  339,  71  N.  E.  956 ;  Leland  v.  School 
District,  &c.,  77  Minn.  469,  80  N.  W.  354 ;  City  School,  &c.,  v. 
Hickman,  47  Ind.  App.  500,  94  N.  E.  828. 

4  Taylor  v.  Petersburgh,  33  Ind.  App.  675,  72  N.  E.  159. 

5  McShane  v.  School  District,  70  Mo.  App.  624. 

6  Hutchins  v.  School  District,  &c.,  128  Mich.  177,  87  N.  W.  80. 

'  Offut  V.  Bourgeois,  16  La.  An.  163 ;  Jones  v.  School  District, 
&c.,  8  Kan.  362. 

146 


Ch.  V]  CONTRACT  OF  EMPLOYMENT  [§  64 

the  duties  as  teacher  in  a  pubhc  school,  and  the  dis- 
trict accepts  the  services,  drawing  its  portion  of  the 
pubhc  school  money  by  reason  of  the  services  of  the 
teacher,  the  teacher  may  recover  for  the  services 
rendered  upon  a  quantum  meruit.^ 

An  act  of  God  which  renders  performance  of  a  con- 
tract impossible,  will  excuse  from  liabihty  thereon. 
But  presence  of  a  contagious  disease  does  not  render 
impossible  the  teaching  of  a  school,  to  those  who  are 
not  afflicted  thereby.  And  if  a  teacher  remains  ready 
to  perform  the  contract,  the  suspension  of  the  school 
for  such  reason,  does  not  preclude  the  right  to  com- 
pensation during  such  period  of  suspension.^  But  if 
the  contract  is  to  teach  for  a  given  period  unless  the 
school  is  discontinued  by  order  of  the  board,  the  clos- 
ing of  the  schools  during  the  period  of  an  epidemic, 
precludes  the  right  to  compensation  during  such  period, 
although  a  recovery  may  be  had  on  the  other  portions  of 
the  contract  period  both  before  and  after  the  epidemic.^ 

Where  the  statute  provides  that  the  committee 
shall  "  appoint  and  agree  with  a  teacher  to  instruct 
the  school  "  the  district  cannot  control  the  committee 
by  a  vote  to  employ  a  female  teacher,  as  such  vote 
would  be  advisory  only.  And  if  the  committee,  not- 
withstanding such  vote,  hires  a  male  teacher,  giving 
him  an  order  for  instructing  the  school,  the  district 

1  Scott  V.  School  District,  67  Vt.  150,  31  Atl.  145. 

2  Libby  v.  Douglas,  175  Mass.  128,  55  N.  E.  808 ;  McKay  v. 
Barnett,  21  Utah  239,  60  Pac.  1100 ;  Dewey  v.  Union,  &c.,  43  Mich. 
480,  5  N.  W.  646 ;  Gear  v.  Gray,  37  N.  E.  (Ind.)  1059 ;  Randolph  v. 
Sanders,  22  Tex.  Civ.  App.  331,  54  S.  W.  621. 

3  Goodyear  v.  School  District,  17  Oreg.  517,  21  Pac.  664. 

147 


§  64]  OF   SCHOOL   TEACHERS  [Ch.  V 

is  bound  to  pay  it ;  and  if  it  does  not  do  so  and  several 
years  later  elects  the  teacher  treasurer  of  the  district, 
he  may  pay  himself  the  amount  due.^ 

A  teacher  cannot  be  lawfully  employed  by  two  mem- 
bers of  the  district  board  without  the  concurrence  of 
the  third  member  when  the  statute  expressly  requires 
the  convening  of  the  board  for  the  transaction  of 
business.^  But  such  contract  by  two  members  of 
the  board  with  the  consent  of  the  third  member  is 
binding  on  the  district.^ 

Unless  there  is  a  limitation  in  the  statute,  a  school 
district  can  employ  a  teacher  or  superintendent  of 
schools  for  two  scholastic  years,  even  though  the 
term  of  office  of  some  members  of  the  board  does  not 
extend  through  that  period.^  But  they  may  not 
contract  for  an  unreasonable  time  beyond  the  current 
school  year.^  Nor  so  as  to  divest  future  boards  of 
the  power  to  select  the  teachers  they  shall  desire.® 

1  Waterbury  v.  Harvey,  56  Vt.  556. 

2  Hazen  v.  Lerche,  47  Mich.  626,  11  N.  W.  413 ;  Ryan  v.  Hum- 
phries, 150  Pac.  (Okla.)  1106;  Aiken  v.  School  District,  &c.,  27 
Kan.  129;  School  Directors,  &c.,  v.  Jennings,  10  111.  App.  643; 
Townsend  v.  Trustees,  &c.,  41  N.  J.  L.  312 ;  Dennison  v.  Padclen,  89 
Pa.  St.  395;  Castro  v.  Board,  &c.,  38  W.  Va.  707,  18  S.  E.  923. 
But  sec,  RusseU  v.  State,  13  Neb.  68,  12  N.  W.  829 ;  Montgomery 
V.  State,  35  Neb.  655,  53  N.  W.  568. 

3  Brown  v.  School  District,  &c.,  1  Kan.  App.  530,  40  Pac.  826. 

4  Caldwell  v.  School  District,  &c.,  55  Fed.  372;  Cleveland  v. 
Amy,  88  Mich.  374,  50  N.  W.  293 ;  Gates  v.  School  District,  53  Ark. 
468,  14  S.  W.  656;  School  District  v.  Morse,  8  Cush.  (Mass.) 
191;  Wilson  v.  E.  Bridgeport,  &c.,  36  Conn.  280;  Reubelt  v. 
Noblesville,  106  Ind.  478,  7  N.  E.  206. 

^  Stevenson  v.  School  Directors,  87  111.  255. 
^  School  Directors  v.  Hart,  4  111.  App.  224 ;  Cross  v.  School  Direc- 
tors, 24  111.  App.  191 ;  Fitch  v.  Smith,  57  N.  J.  L.  526,  34  Atl.  1058. 

148 


Cn.  V]  CONTRACT  OF  EMPLOYMENT  [§  64 

But  in  Iowa  it  has  been  held  that  a  contract  extending 
beyond  one  school  year  is  invalid ;  ^  and  in  any  event 
a  contract  is  not  vaHd  for  any  period  beyond  that 
specified  by  statute.^ 

The  contract  of  a  teacher  to  teach  a  school  for  a 
given  term  of  several  months  at  a  given  rate  per 
month  is  an  entire  contract,^  and  if  the  teacher  leaves 
before  the  term  is  finished,  without  sufficient  cause, 
there  can  be  no  recovery  for  services  up  to  the  time 
of  leaving.^ 

A  school  board  has  no  impHed  authority  to  fix  the 
living  or  boarding  place  of  a  teacher,  in  making  a 
contract  to  teach,  and  incorporate  such  as  a  condition 
of  the  contract.^ 

In  contracting  with  a  teacher,  the  teacher  in  accept- 
ing the  engagement  to  teach,  impliedly  agrees  that 
he  has  the  requisite  learning,  and  the  capacity  to  im- 
part it  to  the  pupils.^ 

If  a  trustee  of  a  school  district  is  employed  by  the 
other  two  trustees  to  teach  the  district  school,  his 
office  as  trustee  becomes  vacant  upon  accepting  and 
entering  upon  his  duties  as  teacher,  the  duties  of  the 
two  offices  being  incompatible.^    But  it  has  been  held 

But  see,  Milford  v.  Zeigler,  1  Ind.  App.  138,  27  N.  E.  303 ;  Silver  v. 
Cummings,  7  Wend.  (N.  Y.)  181. 

1  Burkhead  v.  Independent,  &c.,  107  Iowa  29,  77  N.  W.  491. 

2  Jay  V.  School  District,  &c.,  24  Mont.  219,  61  Pac.  250. 

3  Turner  v.  Baker,  30  Ark.  186. 

*  Clark  V.  School  District,  29  Vt.  217.  Contra:  Riggs  v.  Horde, 
25  Tex.  Supp.  456. 

5  Home  V.  School  District,  &c.,  75  N.  H.  411,  75  Atl.  431. 
« Biggs  V.  Mt.  Vernon,  45  Ind.  App.  572,  90  N.  E.  105. 
^  Ferguson  v.  True,  66  Ky.  255. 

149 


§  64]  OF   SCHOOL   TEACHERS  [Ch.  V 

that  a  moderator  of  a  district  may  employ  her  husband 
to  teach  the  district  school  at  a  contract  price  that  is 
greater  than  would  be  necessary  to  secure  a  better 
teacher,  and  still  not  be  liable  to  removal  from  office,^ 
and  that  a  school  director  may  employ  his  minor 
daughter  as  a  teacher.^ 

If  a  school  board,  without  power  to  dismiss  a  regularly 
qualified  teacher  who  is  under  contract  to  teach  for  a 
specified  time,  should  attempt  to  do  so,  and  the  teacher 
should  accept  such  unauthorized  dismissal,  such  ac- 
ceptance is  a  voluntary  abandonment  of  the  con- 
tract which  precludes  a  recovery  for  the  unfinished 
term.^ 

If  a  public  school  teacher  contracts  to  give  up  an 
advantage  given  by  statute,  such  contract  is  void  as 
against  public  policy.^  And  where  the  contract  with 
a  teacher  provides  for  dismissal  on  thirty  days'  notice, 
such  notice  given  before  the  services  are  begun  is 
effective  and  valid.  ^  And  the  marriage  of  a  female 
school  teacher  is  not  good  ground  for  the  abro- 
gation of  the  contract  under  which  she  has  agreed  to 
teach.  ^ 

The  rules  as  to  the  measure  of  damages  in  the  breach 
of  a  contract  to  teach  a  public  school,  are  the  same  as 
in  case  of  the  breach  of  ordinary  contracts.^ 

1  Hazen  v.  Township  Board,  48  Mich.  188,  12  N.  W.  43. 

2  State  V.  Burchfield,  80  Tenn.  30. 

3  Oakes  v.  School  District,  &c.,  98  Mo.  App.  163,  71  S.  W.  1060. 

4  Board,  &c.,  v.  Burton,  30  Ohio  Cir.  Ct.  411. 

5  Dees  V.  Board,  &c.,  146  Mich.  64,  109  N.  W.  39. 

6  Jameson  v.  Board,  &c.,  74  W.  Va.  389,  81  S.  E.  1126. 

7  Byrne  v.  School  District,  &c.,  139  Iowa  618,  117  N.  W.  983. 

150 


Ch.  V]  COMPENSATION  [§  65 

§  65.    Compensation. 

A  teacher  who  performs  the  duties  called  for  in  the 
contract  or  by  the  provision  of  the  statute,  is  entitled 
to  compensation  by  those  who  contract  for  the  em- 
ployment.^ If  the  compensation  is  expressed  in  the 
contract,  then  that  is  the  compensation  to  be  paid, 
but,  if  no  compensation  is  fixed,  either  by  statute  or 
contract,  the  teacher  may  recover  on  a  quantum  meruit 
for  services  actually  rendered, ^  and,  in  arriving  at  the 
quantum  meruit,  evidence  as  to  the  compensation  paid 
during  the  previous  year  is  not  admissible.^ 

Unless  specifically  provided  by  the  contract,  no 
deduction  can  be  made  from  the  compensation  agreed 
upon,  by  reason  of  closing  the  school  on  account  of 
an  epidemic,"*  or  by  the  destruction  of  the  school 
building,^  or  on  account  of  diminution  of  pupils,^  or 
for  legal  hoHdays,^  so  long  at  least  as  the  teacher 
keeps  himself  in  readiness  to  perform  his  duties.^ 

Unless  the  contract  so  provides,  a  school  teacher  is 


1  Earl  of  Thanet  v.  Gartham,  8  J.  B.  Moore,  368. 

2  Offut  V.  Bourgeois,  16  La.  An.  163 ;  Tyler  v.  Tualatin  Academy, 
14  Oreg.  485,  13  Pac.  329. 

3  Jackson  School  v.  Grimes,  24  Ind.  App.  331.  56  N.  E.  724. 

4  Dewey  v.  Union  School  District,  43  Mich.  480,  5  N.  W.  646 ; 
Libby  y.  Douglas,  175  Mass.  128,  55  N.  E.  808 ;  Smith  v.  School 
District,  &c.,  89  Kan.  225,  131  Pac.  557. 

5  School  Directors  v.  Crews,  23  111.  App.  367 ;  Smith  v.  School 
District,  69  Mich.  589,  37  N.  W.  567 ;  Cashen  v.  School  District,  50 
Vt.  30 ;  Charlestown,  &c.,  v.  Hay,  74  Ind.  127 ;  Corn  v.  Board,  &c., 
39  111.  App.  446.  Contra:  Hall  v.  School  District,  &c.,  24  Mo.  App. 
213. 

«  Singleton  v.  Austin,  27  Tex.  Civ.  App.  88 ;  65  S.  W.  686. 

'  Holloway  v.  School  District,  &c.,  62  Mich.  153,  28  N.  W.  764. 

8  Libby  v.  Douglas,  175  Mass.  128,  55  N.  E.  808. 

151 


§  65]  OF   SCHOOL   TEACHERS  [Ch.  V 

not  to  be  deprived  of  the  agreed  compensation  by 
reason  of  the  burning  of  the  schoolhouse.  The  direc- 
tors may  furnish  another  building  or  room  in  which 
the  school  may  be  continued,  and  if  they  do  not,  or 
are  unable  to  do  so,  the  hability  for  the  salary  still 
exists.^  And  a  school  teacher  appointed  by  a  de 
facto  school  agent  may  recover  for  his  services.^ 
But  an  unlicensed  teacher  cannot  recover  compen- 
sation.^ 

When  it  is  not  against  the  rules  of  the  school  board, 
and  is  m^^de  necessary  by  the  crowded  condition  of 
the  school,  a  teacher  may  assign  a  proficient  scholar 
to  hear  classes,  and  a  school  board  has  no  legal  right 
to  withhold  the  teacher's  wages  because  of  so  doing.^ 
And  the  wrongful  exclusion  of  a  pupil,  by  a  teacher 
in  a  public  school,  does  not  defeat  the  right  of  a  teacher 
to  his  agreed  compensation.^ 

A  treasurer  of  a  school  district,  having  funds  be- 
longing to  the  district  which  have  been  appropriated 
to  the  payment  of  a  teacher's  salary,  becomes  per- 
sonally liable  to  the  teacher  if  he  refuses  to  pay  a 
proper  order  on  demand  for  the  amount  specified.^ 
And  if  the  trustees  of  a  school  district  fail  to  raise  the 
funds  to  pay  the  salary  of  a  teacher  with  whom  they 

^  Corn  V.  Board,  &c.,  39  111.  App.  446 ;  Charlestown,  &c.,  v. 
Hay,  74  Ind.  127.  Contra:  Hall  v.  School  District,  &c.,  24  Mo. 
App.  213. 

2  Woodbury  v.  Knox,  74  Me.  462. 

3  Flanary  v.  Barrett,  146  Ky.  712,  143  S.  W.  38. 

4  Perkins  v.  School  District,  &c.,  61  Mo.  App.  512. 
B  State  V.  Blain,  36  Ohio  St.  429. 

6  Edson  V.  Hayden,  18  Wis.  627. 

152 


Ch.  V]  POWERS  [§  66 

have  contracted,   they  are  personally  liable  for  the 
amount.^ 

Where  an  obhgation  rests  upon  a  county  or  town  to 
pay  for  the  services  of  a  teacher,  the  placing  of  the 
money  for  that  purpose  with  the  proper  custodian  of 
•the  fund  does  not  discharge  the  obhgation. ^  And  the 
salary  of  a  pubhc  school  teacher  is  not  attachable  by 
trustee  process  while  it  is  in  the  hands  of  city  officials 
whose  duty  it  is  to  pay  it.^ 

§  66.   Powers. 

The  teacher  has,  in  a  proper  case,  the  inherent  power 
to  suspend  a  pupil  from  the  privileges  of  his  school, 
unless  he  has  been  deprived  of  the  power  by  the  af- 
firmative action  of  the  proper  board.^ 

The  teacher  could  not  perform  the  duties  of  his  em- 
ployment without  maintaining  proper  and  necessary 
disciphne  in  the  school,  and  it  is  his  right,  and  might 
be  his  duty,  to  expel  the  pupil  to  save  the  rest  of  the 
school  from  being  injured  by  his  presence.  It  is  not 
the  duty  of  the  teacher  to  teach  the  school  without 
maintaining  proper  and  necessary  discipline  in  it,  and 
if  the  committee  insist  that  the  pupil  should  be  there, 
when  the  teacher  could  not  have  him  there,  and  have 
the  disciphne  too,  it  was  equivalent  to  insisting  that 

1  Ferguson  v.  True,  66  Ky.  255. 

2  Caldwell  County  v.  Harbert,  68  Tex.  321,  4  S.  W.  607 ;  Clark  v. 
Great  Harrington,  11  Pick.  (Mass.)  260. 

^  Hightower  v.  Slaton,  54  Ga.  108 ;  Pruitt  v.  Armstrong,  56  Ala. 
306 ;  School  District,  &c.,  v.  Gage,  39  Mich.  484.  But  see,  Seymour 
V.  School  District,  53  Conn.  502,  3  Atl.  552 ;  Bates  v.  Bates,  74  Ga. 
105. 

*  State  V.  Burton,  45  Wis.  154. 

153 


§  67]  OF   SCHOOL   TEACHERS  [Ch.  V 

the  teacher  could  teach  the  school  without  discipHne, 
which  he  was  not  bound  to  do.  So  it  was  held  that 
the  committee  had  no  legal  right  to  discharge  the 
teacher  for  the  reason  that  he  had  expelled  a  pupil 
against  the  wishes  of  the  directors  and  without  their 
consent.^ 

A  teacher  has  no  authority  to  contract  for  the  sweep- 
ing and  keeping  of  fires  in  a  schoolhouse,  although  the 
district  board  refused  to  do  so,  and  the  service  was 
actually  necessary.^ 

§  67.   Religious  Garb. 

It  has  been  held  that  the  employment  of  teachers 
in  the  pubhc  schools,  representatives  of  a  religious 
order,  who  wear  in  school  a  distinctive  sectarian  garb 
of  their  order  is  not  a  violation  of  the  law  or  an  abuse 
of  discretion  on  the  part  of  the  school  authorities 
which  the  courts  could  control,  and  that  this  situation 
was  not  changed  by  the  fact  that  the  teachers  con- 
tributed all  their  earnings  beyond  their  support  to  the 
treasury  of  their  order  for  religious  purposes.  This 
case  arose  by  a  suit  for  an  injunction  to  restrain  the 
school  board  from  continuing  the  employment  of 
such  teachers,  and  there  had  been  no  rule  by  the  school 
authorities  against  the  wearing  of  such  garb  and  em- 
blems by  the  teachers. 

The  action  brought,  however,  was  rather  an  attempt 
by  individual  citizens  to  override  the  judgment  and 

1  Scott  V.  School  District,  46  Vt.  452 ;  Parker  v.  School  District, 
5  Lea  (Tenn.)  525. 

2  Taylor  v.  School  District,  60  Mo.  App.  372. 

154 


Ch.  V]  RELIGIOUS  WORSHIP  [§  68 

discretion  of  the  school  board  on  the  ground  that 
they  were  violating  the  provisions  of  the  State  con- 
stitution guaranteeing  equal  rights  of  conscience  and 
prohibiting  preference  by  law  to  rehgious  estabUsh- 
ments  or  modes  of  worship,  and  the  use  of  public 
money  for  sectarian  schools.  The  court,  however, 
sustained  the  lawfulness  of  the  employment  of  such 
teachers  for  the  reason  that  in  the  matter  was  involved 
solely  the  exercise  of  discretion  by  the  school  board 
in  their  performance  of  the  official  duty,  for  which 
they  alone  were  responsible,  and  that  this  discretion 
when  it  does  not  transgress  the  law  is  not  reviewable 
by  any  court. ^ 

It  has  been  held,  however,  that  a  superintendent  of 
public  instruction  may  prohibit  a  teacher  from  wearing 
a  distinctly  religious  garb  while  teaching  in  the  public 
schools  that  are  under  his  charge,  and  such  regulation 
is  reasonable  and  valid. ^ 

§  68.   Bible  Reading  and  Religious  Worship. 

The  reading  of  the  Bible,  repeating  the  Lord's 
Prayer,  and  singing  religious  songs  in  pubHc  schools, 
have  been  protested  against  as  promoting  sectarian 
purposes,  making  the  pubHc  schools  places  of  worship, 
and  for  such  reasons  unconstitutional ;  and  when  such 
matters  have  been  brought  before  various  courts, 
quite  divergent  views  have  been  held,  some  courts 
holding  that  such  Bible  reading  at  all  is  unconstitu- 

1  Hysong  v.  Gallitzin,  &c.,  164  Pa.  St.  629,  30  Atl.  482 ;  Hutchin- 
son V.  Skinner,  21  Misc.  Rep.  729,  49  N.  Y.  S.  360. 

2  O'Connor  v.  Hendrick,  184  N.  Y.  421,  77  N.  E.  612. 

155 


§68]  OF   SCHOOL  TEACHERS  [Ch.  V 

tional,  others  that  even  the  Protestant  version  is  not 
legally  objectionable  to  any  sect ;  and  in  one  case  it 
was  held  that  the  reading  of  the  Bible  could  be  pro- 
hibited on  the  protest  of  a  Jew,  but  not  when  objected 
to  by  a  Catholic.^  The  great  weight  of  opinion,  how- 
ever, seems  to  be  that  such  reading  of  the  Bible, 
repeating  of  the  Lord's  Prayer,  and  singing  of  rehgious 
songs  are  lawful  when  done  without  comment,  excus- 
ing from  participation  such  children  whose  parents  or 
guardians  so  request.^ 

It  would  not  be  competent  for  a  school  committee 
to  pass  an  order  or  regulation  requiring  pupils  to  con- 
form to  any  religious  rite  or  observance,  or  to  go 
through  with  any  religious  forms  or  ceremonies  which 
were  inconsistent  with  or  contrary  to  their  religious 
convictions  or  conscientious  scruples.  Such  a  requisi- 
tion would  be  a  violation  of  the  constitutional  provi- 
sion that  no  one  shall  be  hurt  or  molested  in  his 
person,  liberty  or  estate  for  worshipping  God  in  the 
manner  and  season  most  agreeable  to  the  dictates  of 
his  own  conscience.  So  an  order  or  regulation  of 
the  school  committee  which  would  require  a  pupil 
to  join  in  a  religious  rite  or  ceremony  contrary  to 
his  or  her  religious  opinions,  or  those  of  a  parent 
or  guardian,  would  be  clearly  unreasonable  and 
invalid. 

But  under  a  statute  requiring  that  the  reading  of 
the  Bible  in  public  schools  shall  be  without  written 

^  Herold  v.  Parish  Board,  &c.,  —  La.  — ,  68  So.  116. 
2  Billard  v.  Board,  &c.,  69  Kan.  53,  76  Pac.  422 ;    Hackett  v. 
Brooksville,  &c.,  120  Ky.  608,  87  S.  W.  792. 

156 


Ch.  V]  RELIGIOUS  WORSHIP  [§  68 

note  or  oral  comment,  and  providing  that  no  pupil 
shall  be  called  upon  to  read  any  particular  version, 
whose  parent  or  guardian  shall  declare  that  such 
pupil  has  conscientious  scruples  against  allowing  him 
to  read  therefrom,  a  lawful  order  may  be  made  by 
the  school  committee  that  the  schools  in  their  district 
shall  be  opened  each  morning  with  reading  from  the 
Bible,  and  prayer,  and  that  during  the  prayer  each 
pupil  shall  bow  the  head,  unless  the  parents  request 
that  the  pupil  shall  be  excused  from  doing  so ;  and 
they  may  lawfully  exclude  from  the  school  a  pupil 
who  refuses  to  comply  with  such  order,  and  whose 
parents  refuse  to  request  that  the  pupil  shall  be  ex- 
cused from  so  doing. 

No  more  appropriate  method  could  be  adopted  of 
keeping  in  the  minds  of  both  teachers  and  pupils  that 
one  of  the  chief  objects  of  education  is  to  impress  on 
the  minds  of  children  and  youth  committed  to  the 
care  and  instruction  of  the  public  schools,  the  prin- 
ciples of  piety  and  justice,  and  a  sacred  regard  for  the 
truth.  Such  rule  does  not  prescribe  an  act  which  is 
necessarily  one  of  devotion  or  religious  ceremony,  but 
goes  no  further  than  to  require  the  observance  of  quiet 
and  decorum  during  the  religious  service  with  which 
the  school  is  opened.  It  does  not  compel  a  pupil  to 
join  in  the  prayer,  but  only  to  assume  an  attitude 
which  is  calculated  to  prevent  interruption,  by  avoid- 
ing all  communication  with  others  during  the  service. 
And  such  regulation  does  not  require  a  pupil  to  comply 
with  that  part  of  it  prescribing  the  position  of  the 
head  during  prayer,  if  the  parent  requested  a  child 

157 


§  68]  OF   SCHOOL   TEACHERS  [Ch.  V 

to  be  excused  from  it.^  And  it  has  been  held  that 
under  a  statute  providing  that  the  Bible  shall  not  be 
excluded  from  any  school  of  the  State,  nor  that  any 
pupil  shall  be  required  to  read  it,  contrary  to  the 
wishes  of  his  parent  or  guardian,  an  injunction  will  not 
be  granted  to  restrain  the  reading  or  repeating  there- 
from, on  a  suit  brought  by  a  taxpayer  whose  children 
are  not  required  to  be  present  during  such  exercises.- 

In  Texas  it  has  been  held  that  exercises  in  the  public 
schools  consisting  of  the  reading  of  non-sectarian  ex- 
tracts from  the  Bible,  by  the  teacher  without  comment, 
and  repeating  the  Lord's  Prayer,  and  the  singing  of 
appropriate  songs  in  which  the  pupils  are  invited  but 
not  required  to  join  does  not  make  the  schools  places 
of  worship.^  And  in  Maine  it  was  held  that  even 
where  the  committee  required  that  the  Protestant 
version  of  the  Bible  should  be  read  in  the  schools  by 
scholars  able  to  read,  it  was  not  only  constitutional 
but  binding  upon  all  members  of  the  school,  although 
composed  of  various  sects. ^  But  in  Illinois  and  some 
other  States  the  reading  of  the  Bible  in  the  public 
schools  is  held  unconstitutional  as  promoting  a  sec- 
tarian purpose.^ 

*  Spiller  V.  Woburn,  12  Allen  (Mass.)  127.  But  see,  Stevenson  v. 
Hanyen,  1  Lack.  Leg.  N.  (Pa.)  99. 

2  Moore  v.  Monroe,  64  Iowa  367,  20  N.  W.  475 ;  Hart  v.  School 
District,  &c.,  2  Lane.  L.  Rev.  (Pa.)  346.  See  also,  Nessle  v.  Hum, 
1  Ohio  N.  P.  140.  Contra :  State  v.  District  Board,  &c.,  76  Wis.  177, 
44  N.  W.  967. 

3  Church  P.  Bullock,  109  S.  W.  (Tex.)  115. 

4  Donahoe  v.  Richards,  38  Me.  379. 

5  People  V.  Board,  &c.,  245  111.  334,  92  N.  E.  251.  See  exhaustive 
and  scholarly  essay  by  Henry  Schofield,  Professor  of  Law  in  North- 

158 


Ch.  V]  REMOVAL  AND  SUSPENSION  [§  69 

A  pupil  may  be  excluded  for  absence  from  school 
without  leave,  even  if  done  through  a  sense  of  religious 
obligation,  and  at  the  behest  of  his  parents.  And 
such  an  exclusion  is  not  a  violation  of  the  constitutional 
provision  preserving  the  right  to  worship  God  according 
to  the  dictates  of  one's  own  conscience  without  being 
abridged  in  the  enjoyment  of  civil  rights.^ 

§  69.   Discharge,  Removal  and  Suspension. 

A  teacher,  even  if  employed  under  a  valid  contract, 
may  nevertheless  be  discharged  for  a  good  and  sufficient 
cause,^  such  as  for  incompetency,^  neglect  of  duty,'^ 
immoral  conduct,^  failure  to  manage  and  govern  the 
school,^  refusal  to  obey  the  valid  orders  of  the  board 
of  directors,^  lack  of  discretion  and  desirable  temper,^ 
tardiness  in  going  to  school,^  or  other  sufficient  cause. 

western  University,  in  Vol.  VI.  Illinois  Law  Review,  17-91,  entitled 
"  Religious  Liberty  and  Bible  Reading  in  the  Illinois  Public  Schools  ", 
in  which  this  case  is  adversely  considered  in  detail.  State  v.  Scheve, 
65  Neb.  853,  91  N.  W.  846 ;  State  v.  District,  &c.,  76  Wis.  177,  44 
N.  W.  967. 

^  Ferriter  v.  Tyler,  48  Vt.  444,  in  which  case  see  excellent  dis- 
cussion of  constitutional  principles  involved. 

2  Robinson  v.  School,  &c.,  96  111.  App.  604;  Tripp  v.  School,  &c., 
50  Wis.  657,  7  N.  W.  840. 

3  Crawfordsville  v.  Hays,  42  Ind.  200. 

^  School  District  v.  Maury,  53  Ark.  471,  14  S.  W.  669 ;  School 
Directors  v.  Hudson,  88  111.  563 ;  Holden  v.  Shrewsbury,  &c.,  38  Vt. 
529. 

5  School  District  v.  Maury,  53  Ark.  471,  14  S.  W.  669 ;  McLellan 
V.  St.  Louis  Public  Schools,  15  Mo.  App.  362 ;  State  v.  Board,  &c., 
1  Ohio  N.  P.  151 ;  Tingley  v.  Vaughn,  17  lU.  App.  347. 

^  Eastman  v.  District,  &c.,  21  Iowa  590. 

^  Parker  v.  School  District,  5  Lea  (Tenn.)  525. 

*  Robinson  v.  School  Directors,  96  111.  App.  604, 

9  School  Directors  v.  Birch,  93  111.  App.  499. 

159 


§69]  OF   SCHOOL  TEACHERS  [Ch.  V 

But  the  board  has  no  power  to  discharge  a  teacher 
before  the  expiration  of  the  term  of  his  contract  with- 
out good  cause/  nor  have  they  the  power  to  transfer 
a  teacher  from  a  higher  to  a  lower  grade. ^  Assigning 
a  teacher  to  a  lower  grade  is  a  "  removal ",  and  just 
as  much  so  as  a  dismissal  would  be.^ 

The  right  to  discharge  a  teacher  at  the  pleasure  of  a 
school  board  may  be  reserved  in  the  contract  with 
the  teacher,  and  is  sometimes  provided  by  statute, 
but  in  order  to  make  the  exercise  of  this  right  a  valid 
one  the  cause  for  discharge  must  be  legally  sufficient.'* 
It  has  been  held,  however,  that  such  a  reservation  of 
right  to  discharge  is  against  public  policy  and  conse- 
quently invalid.^  Where  the  statute  provides  that  a 
teacher  can  be  discharged  only  for  good  cause  shown, 
there  must  be  an  accusation,  notice,  and  evidence 
before  the  board  in  its  official  capacity,  and  an  op- 
portunity given  the  teacher  to  be  heard  before  dis- 
missal.^   But  if  the  teacher  makes  an  appearance  at 

1  School  District  v.  Hale,  15  Colo.  367,  25  Pac.  308 ;  Crawfords- 
ville  V.  Hays,  42  Ind.  200 ;  Searsmont  v.  Farwell,  3  Me.  450 ;  Wallace 
V.  School  District,  50  Neb.  171,  69  N.  W.  772. 

2  Kennedy  v.  Board,  &c.,  82  Cal.  483,  22  Pac.  1042. 

3  Kennedy  v.  Board,  &c.,  82  Cal.  483,  22  Pac.  1042;  Fairchild  v. 
Board,  &c.,  107  Cal.  92,  40  Pac.  26 ;  In  re  Gleese,  50  N.  Y.  Super. 
Ct.  473. 

^  Olney  School  District  v.  Christ}'',  81  111.  App.  304 ;  Armstrong  v. 
Union,  &c.,  28  Kan.  345 ;  Richardson  v.  School  District,  38  Vt.  602. 

5  Thompson  v.  Gibbs,  97  Tenn.  489,  37  S.  W.  277. 

6  School  District,  &c.,  v.  Stone,  14  Colo.  App.  211,  59  Pac.  885; 
School  District,  &c.,  v.  Shuck,  49  Colo.  526,  113  Pac.  511 ;  Rumble  v. 
Barker,  27  Ind.  App.  69,  60  N.  E.  956;  White  v.  Wohlenberg,  113 
Iowa  236,  84  N.  W.  1026 ;  Edinboro  Normal  School  v.  Cooper,  150 
Pa.  St.  78,  24  Atl.  348 ;  Butcher  v.  Charles,  95  Tenn.  532,  32  S.  W. 
631. 

160 


Ch.  V]  REMOVAL  AND  SUSPENSION  [§  69 

the  hearing,  the  want  of  notice  of  such  hearing  has 
been  held  to  be  waived.^ 

In  dismissing  a  teacher  for  due  cause  the  affirmative 
vote  of  the  majority  of  the  school  board  is  necessary,^ 
although  the  statutes  may  require  a  greater  affirmative 
vote,  for  example,  three-fourths  of  the  number.^  And 
an  entry  on  the  records  of  the  meeting  of  the  names  of 
the  persons  voting  has  been  held  essential. * 

For  reasons  of  public  policy  the  legislature  may  pro- 
vide that  the  school  committee  may  dismiss  from  em- 
ployment any  teacher  whenever  they  think  proper, 
and  such  teacher  shall  receive  no  compensation  for 
services  rendered  after  such  dismissal.  And  under 
such  statute  a  teacher  engaged  by  the  school  com- 
mittee for  a  fixed  time,  and  at  a  stated  salary,  may  be 
discharged  by  the  committee,  and  no  action  can  be 
maintained  against  the  town  for  salary  for  the  re- 
mainder of  the  contracted  time  of  employment.'' 

The  power  to  dismiss  teachers  is  generally  expressed 
in  the  statutes,  which  vary  in  different  jurisdictions, 
but  they  must  always  be  strictly  followed.  If  there 
is  no  statutory  provision  regarding  the  removal  of 
teachers,  that  right  rests  with  those  who  have  power  to 
employ  them.^ 

Where  a  school  teacher  is  engaged  for  a  specific 

1  Kellison  v.  School  District,  &c.,  20  Mont.  153,  50  Pac.  421. 

2  Keating  v.  Neary,  9  Kulp  (Pa.)  421. 

3  People  V.  Board,  &c.,  69  Hun  (N.  Y.)  212,  23  N.  Y.  S.  473. 

4  Com.  V.  Risser,  3  Pa.  Super.  Ct.  196. 

5  Wood  V.  Medfield,  123  Mass.  545. 

6  Wallace  v.  School  District,  50  Neb.  171,  69  N.  W.  772 ;  People 
V.  Hyde,  89  N.  Y.  11. 

161 


§  G9]  OF   SCHOOL   TEACHERS  [Ch.  V 

term  and  is  discharged  without  cause  before  the  ter- 
mination of  the  specific  term,  compensation  for  the 
period  covered  by  the  unlawful  discharge  may  be 
recovered  in  an  action  for  a  breach  of  the  contract.^ 
This  right  of  a  teacher  to  recover  for  an  unlawful  dis- 
charge may  be  defeated  by  a  new  agreement,  as  where 
the  teacher  accepts  a  half  month's  salary  and  volun- 
tarily gives  up  the  school.^  But  where  a  teacher  is 
disiTiissed  for  sufficient  cause  and  is  afterwards  for 
good  cause  reinstated,  he  cannot  recover  for  services 
rendered  in  the  meantime,^  and  a  denial  of  a  writ  of 
mandamus  will  not  bar  subsequent  action.*^ 

Where  a  teacher  is  validly  removed  for  cause,  his 
right  to  receive  further  salary  is  terminated  by  the  no- 
tice which  he  receives,^  and  where  the  statute  specifies 
the  causes  for  which  the  board  of  school  directors 
has  power  to  discharge  a  teacher,  a  discharge  in  ac- 
cordance therewith  is  final  and  conclusive,  and  no 
recovery  can  be  had  for  breach  of  contract  unless 
the  board  acted  corruptly  and  in  bad  faith  and  in 
clear  abuse  of  its  powers.^ 

A  teacher  wrongfully  dismissed  by  a  school  board 
is  not  required  to  accept  other  employment  of  a  differ- 

1  School  District,  &c.,  v.  Hale,  15  Colo.  367,  25  Pac.  308 ;  Arm- 
strong V.  School  District,  19  Mo.  App.  462 ;  Swartwood  v.  Walbridge, 
57  Hun  (N.  Y.)  33,  10  N.  Y.  S.  862 ;  Richardson  v.  School  District, 
38  Vt.  602 ;  Scott  v.  Joint  School  District,  51  Wis.  554,  8  N.  W.  398. 

2  Frazier  v.  School  District,  24  Mo.  App.  250. 

3  KeUison  v.  School  District,  20  Mont.  153,  50  Pac.  421. 
"  Steinson  v.  Board,  &c.,  165  N.  Y.  431,  59  N.  E.  300. 

5  Wood  V.  Medfiekl,  123  Mass.  545 ;  Gillan  v.  Board,  &c.,  88 
Wis.  7,  58  N.  W.  1042. 

6  McCrea  v.  Pine  Township,  &c.,  145  Pa.  St.  550,  22  Atl.  1040. 

162 


Ch.  V]  REMOVAL  AND  SUSPENSION  [§  69 

ent  character  or  grade, ^  nor  to  accept  an  offer  upon 
terms  not  in  accordance  with  the  original  contract,^ 
and  the  measure  of  damages,  ordinarily  the  amount 
of  the  agreed  wages, ^  is  not  lessened  by  refusal  to  ac- 
cept an  offer  not  equal  in  terms  to  that  of  the  broken 
contract.  ** 

If  a  teacher  under  contract  to  teach  one  year  is 
discharged  without  cause  before  the  expiration  of 
that  period,  and  finds  it  impossible  to  secure  another 
position  for  the  remaining  part  of  such  period,  a  re- 
covery may  be  had  for  the  remaining  part  of  the 
contract  period  at  the  full  contract  price.  ^  The  burden 
of  showing  that  a  discharged  teacher  might  have  se- 
cured other  similar  employment,  and  thereby  have 
reduced  the  damages,  is  upon  the  district.^  And  when 
a  teacher  holding  a  license  to  teach  is  discharged  for 
incompetency,  the  burden  is  on  the  school  authorities 
to  establish  the  truth  of  the  charge.  A  recital  of  the 
facts  constituting  such  incompetency  contained  in  the 
order  of  removal  estops  them  from  showing  different 
or  other  facts  or  causes.^ 

Where  the  statute  gives  a  right  of  an  appeal  to  the 
County  or  State  Superintendent  in  case  of  wrongful 
dismissal  by  the  school  board,  a  teacher  cannot  main- 

1  FarreU  v.  School  District,  98  Mich.  43,  56  N.  W.  1053. 

2  Sparta,  &c.,  v.  Mendell,  138  Ind.  188,  37  N.  E.  604. 

3  School  District,  &c.,  v.  Hale,  15  Colo.  367,  25  Pac.  308 ;  School 
District  v.  Kimmel,  31  111.  App.  537;  McCutchen  v.  Windsor,  55 
Mo.  149 ;  Scott  v.  School  District,  &c.,  46  Vt.  452. 

4  Jackson  v.  Independent,  &c.,  110  Iowa  313,  81  N.  W.  596. 

5  Worthington  v.  Oak,  &c.,  100  Iowa  39,  69  N.  W.  258. 

«  Carver  v.  School  District,  &c.,  113  Mich.  524,  71  N.  W.  859. 
'  Darter  v.  Board,  &c.,  161  111.  App.  284. 

163 


§  69]  OF   SCHOOL   TEACHERS  [Ch.  V 

tain  an  action  against  the  school  board  for  a  breach 
of  contract  unless  he  has  taken  steps  toward  reinstate- 
ment as  a  teacher  by  such  appeal.^ 

A  public  school  teacher  is  not  a  public  officer,  and 
the  contract  of  a  teacher  is  one  of  employment,  and, 
inasmuch  as  in  case  of  wrongful  discharge  an  adequate 
remedy  at  law  lies  in  damages  for  the  breach  of  the 
contract,  a  writ  of  mandamus  will  not  be  issued ;  ^ 
nor  will  a  writ  of  injunction  by  or  against  a  board  of 
trustees  for  violation  of  its  contract  in  discharging  a 
teacher  and  substituting  another  in  his  place,  either 
on  the  part  of  the  teacher  or  on  the  part  of  the  tax- 
payers and  patrons  of  the  school.^  And  where  a 
teacher  is  employed  by  a  school  board,  he  is  barred 
from  having  his  discharge  reviewed  in  any  tribunal 
except  that  created  by  statute/  If  the  school  board 
acts  fairly  within  the  scope  of  its  duty,  members  of  the 
board  are  not  personally  liable  for  damages  unless  they 
exceed  their  authority  and  act  maliciously  or  wantonly.^ 

A  tendered  resignation  of  a  school  teacher  will  not 
amount  to  an  abandonment  of  the  contract  until  the 
resignation  is  accepted,  and  the  teacher  has  a  right 

1  Park  V.  Independent,  &c.,  65  Iowa  209,  21  N.  W.  567 ;  Kirk- 
patrick  v.  Independent,  &c.,  53  Iowa  585,  5  N.  W.  750 ;  Harkness  v. 
Hutcherson,  90  Tex.  383,  38  S.  W.  1120;  Van  Dyke  v.  School  Dis- 
trict, &c.,  43  Wash.  235,  86  Pac.  402. 

estate  V.  Smith,  49  Neb.  755,  69  N.  W.  114;  Swartwood  v. 
Walbridge,  57  Hun  (N.  Y.)  34,  10  N.  Y.  S.  862. 

3  School  District,  &c.,  v.  Carson,  9  Colo.  App.  6,  46  Pac.  846. 

*  Draper  v.  PubUc  Instruction  Commissioners,  66  N.  J.  L.  54, 48 
Atl.  556. 

s  Morrison  v.  McFarland,  51  Ind.  206 ;  Gregory  v.  Small,  39  Ohio 
St.  346 ;  Burton  v.  Fulton,  49  Pa.  St.  151 ;  McCutchen  v.  Windsor, 
55  AIo.  153. 

164 


Ch.  V]  REMOVAL  AND  SUSPENSION  [§  69 

to  withdraw  a  resignation  at  any  time  before  it  is 
acted  upon  by  the  school  board. ^  And  a  teacher 
having  a  proper  certificate,  and  who  has  contracted 
to  teach,  cannot  be  dismissed  for  incompetency  before 
any  services  have  been  rendered.^ 

Where  the  statute  provides  that  teachers  may  be 
dismissed  at  the  pleasure  of  the  board,  a  contract 
made  for  a  definite  period  of  service  is  presumed  to 
be  made  in  view  of  that  statutory  provision,  and  a 
teacher  employed  under  such  contract  may,  never- 
theless, be  dismissed  at  pleasure  of  the  board.^  But 
in  absence  of  such  statutory  provision  a  school  teacher 
employed  for  a  term,  and  dismissed  at  the  end  of  the 
first  week's  employment,  and  without  good  cause,  is 
entitled  to  damages.^ 

Wliere  a  teacher  refuses  to  consent  to  a  vacation 
ordered  by  the  board  of  directors  during  the  term  for 
which  the  teacher  was  employed,  but  which  was  not 
specified  in  the  contract  to  teach,  and  the  directors 
forcibly  seized  and  ejected  the  teacher  from  the  school- 
house  in  the  enforcement  of  such  vacation,  the  direc- 
tors were  found  guilty  of  assault  and  battery.^  And 
where  school  officers  forcibly  and  illegally  dispossessed 
the  teacher  of  the  schoolhouse,  they  were  held  indi- 
vidually liable  for  damages.^ 

1  Curttright  v.  Independent,  &c.,  Ill  Iowa  20,  82  N.  W.  444. 

2  Farrell  v.  School  District,  &c.,  98  Mich.  43,  56  N.  W.  1053. 

3  Gillan  v.  Board,  &c.,  88  Wis.  7,  58  N.  W.  1042;  Bays  v.  State, 
6  Neb.  167 ;  Jones  v.  Nebraska  City,  1  Neb.  176. 

*  Doyle  V.  School  Directors,  36  ill.  App.  653. 
6  White  V.  Kellogg,  119  Ind.  320,  21  N.  E.  901. 
6  McCutchen  v.  Windsor,  55  Mo.  149. 

165 


§  70]  OF   SCHOOL  TEACHERS  [Ch.  V 

Where  neither  statute  nor  contract  provides  that 
marriage  of  a  female  teacher  shall  be  a  cause  for  re- 
moval there  is  no  right  to  remove  such  teacher  for 
reason  of  her  marriage.^  But  the  absence  of  a  married 
woman  teacher  from  her  employment  by  reason  of 
maternity  might  be  of  such  length  as  to  support  a 
charge  of  neglect  of  duty  and  authorize  her  removal, 
although  a  mere  absence  for  such  reason  would  not.^ 
The  dismissal  of  a  married  female  teacher  for  neglect 
of  duty,  by  reason  of  her  absence  for  three  months 
for  reason  of  maternity,  will  not  be  reviewed  on  man- 
damus.^ 

School  directors  have  the  power  to  suspend  a  teacher 
for  non-compliance  with  an  order  that  all  teachers 
shall  be  vaccinated.'*  And  a  teacher  who  refuses  to 
admit  a  pupil,  dismissed  by  her,  until  the  conduct  of 
the  pupil  may  be  inquired  into,  is  guilty  of  insub- 
ordination and  may  be  discharged  therefor.^ 

§  70.   Right  to  Chastise  Pupils. 

A  teacher  may,  for  proper  cause,  reasonably  and 
moderately  chastise  a  pupil,  ^  especially  for  conduct 
tending  to  demoralize  other  pupils  and  to  interfere 
with  the  proper  management  of  the  school.''  But 
where  a  teacher  punishes  a  pupil  in  a  cruel  manner, 

1  People  V.  Board,  &c.,  82  Misc.  Rep.  684,  144  N.  Y.  S.  87. 

2  People  V.  Board,  &c.,  160  N.  Y.  App.  Div.  557,  145  N.  Y.  S.  853. 

3  People  V.  Board,  &c.,  212  N.  Y.  463,  106  N.  E.  307. 

4  Lyndall  v.  High  School  Committee,  19  Pa.  Super.  Ct.  232. 

6  Leddy  v.  Board,  &c.,  160  111.  App.  187. 

«  Cook  V.  Neely,  143  Mo.  App.  632,  128  S.  W.  233. 

7  Dodd  V.  State,  94  Ark.  297,  126  S.  W.  834. 

166 


Ch.  Y]  right  to  chastise   pupils  [§  70 

and  a  parent  incited  thereby  assaults  the  teacher, 
such  punishment  may  be  shown  in  mitigation  of 
exemplary  damages  although  not  justifying  the  as- 
sault.^ 

The  corporal  punishment  that  a  school  teacher  may 
inflict  on  a  pupil  is  such  that  the  general  judgment  of 
reasonable  men  would  not  pronounce  it  excessive.^ 
A  school  teacher,  for  the  purpose  of  correction,  repre- 
sents the  parent,  and  has  the  parental  authority  in 
this  regard  delegated  to  him.^  But  a  parent  cannot 
expressly  delegate  any  authority  which  he  does  not 
himself  possess,  as,  for  example,  to  administer  excessive 
punishment.  The  power  of  the  school  teacher,  also, 
has  a  natural  limitation,  as  the  love  and  affection  of 
the  parent  which  would  temper  the  chastisement 
cannot  be  delegated,  and  consequently  the  power  is 
more  hable  to  abuse  as  thus  delegated.'* 

The  teacher,  being  charged  with  a  part  of  the  parents' 
duties  to  train  up  and  qualify  children  for  becoming 
useful  and  virtuous  members  of  society,  is  by  law 
invested  with  the  parents'  power  to  administer  moder- 
ate correction  when  it  shall  be  just  and  necessary  in 
order  to  control  stubbornness,  quicken  diligence,  and 
reform  bad  habits,^  but  chastisement  of  a  pupil  for 
breaking   an   unreasonable   rule   renders   the   teacher 

1  Cook  V.  Neely,  143  Mo.  App.  632,  128  S.  W.  233. 

2  Patterson  v.  Nutter,  78  Me.  509,  7  Atl.  273. 

3  Reg.  V.  Hopley,  2  Fos.  &  F.  202 ;  1  Bl.  Com.  453 ;  Stevens  v. 
Fassett,  27  Me.  266 ;  Boyd  v.  State,  88  Ala.  169,  7  So.  268 ;  Quinn 
V.  Nolan,  7  Ohio  Dec.  585 ;  Cooper  v.  State,  8  Baxt.  (Tenn.)  324. 

4  Lander  v.  Seaver,  32  Vt.  114. 

s  State  V.  Pendergrass,  19  N.  C.  (2  Dev.  &  B.  L.)  365. 

167 


§  70]  OF   SCHOOL   TEACHERS  [Ch.  V 

liable  in  an  action  of  assault  and  battery.^  Likewise, 
in  exercising  control  over  a  child  in  matters  outside 
of  the  jurisdiction  of  the  teacher,^  or  when  the  cause 
for  the  chastisement  is  unknown  to  the  pupil.^ 

It  is  commonly  said  that  a  teacher  has  the  same 
right  to  chastise  his  pupil  that  a  parent  has  to  punish 
his  child.  But  that  is  true  only  in  a  limited  sense. 
The  teacher  has  no  general  right  of  chastisement  for 
all  offenses,  as  has  the  parent.  The  teacher's  right 
in  that  respect  is  restricted  to  the  limits  of  his  juris- 
diction and  responsibility  as  a  teacher.  But  within 
those  limits,  a  teacher  may  exact  a  compliance  with 
all  reasonable  demands,  and  may,  in  a  kind  and  reason- 
able spirit,  inflict  corporal  punishment  upon  a  pupil 
for  disobedience  or  other  conduct  detrimental  to  the 
welfare  of  the  school.  This  punishment  should  not 
be  either  cruel  or  excessive,  and  ought  always  to  be 
apportioned  to  the  gravity  of  the  offense  and  within 
the  bounds  of  moderation. 

The  law  has  not  undertaken  to  prescribe  stated 
punishments  for  particular  offenses,  but  has  contented 
itself  with  the  general  grant  of  the  power  of  moderate 
correction,  and  has  confined  the  graduation  of  punish- 
ments, within  the  limits  of  this  grant,  to  the  discretion 
of  the  teacher.'*  Therefore  when  complaint  is  made, 
the  calm  and  honest  judgment  of  the  teacher  as  to 
what  the  situation  required  should  have  weight,  as 

1  State  V.  Vanderbilt,  116  Ind.  11,  18  N.  E.  266. 

2  Morrow  v.  Wood,  35  Wis.  58. 
'  State  V.  Mizner,  50  Iowa  145. 

*  State  V.  Pendergrass,  19  N.  C.  (2  Dev.  &  L.)  365. 

168 


Ch.  V]  RIGHT  TO  CHASTISE  PUPILS  [§  70 

in  the  case  of  a  parent  under  similar  circumstances, 
and  where  no  improper  weapon  has  been  employed, 
the  presumption  will  be,  until  the  contrary  is  made  to 
appear,  that  what  was  done  was  rightly  done.  Sub- 
ject to  these  general  rules,  the  teacher's  right  to  inflict, 
and  the  duty  of  inflicting  corporal  punishment  upon 
a  pupil,  and  the  reasonableness  of  such  a  punishment 
when  imposed,  must  be  judged  of  by  the  varying  cir- 
cumstances of  each  particular  case.^ 

The  better  doctrine  of  the  adjudged  cases,  therefore, 
is,  that  the  teacher  is  within  reasonable  bounds  the 
substitute  for  the  parent,  exercising  his  delegated 
authority.  He  is  vested  with  the  power  to  administer 
moderate  correction,  with  a  proper  instrument,  in 
cases  of  misconduct,  which  ought  to  have  some  refer- 
ence to  the  character  of  the  offense,  the  sex,  age,  size, 
and  physical  strength  of  the  pupil.  When  the  teacher 
keeps  within  this  circumscribed  sphere  of  his  authority 
the  degree  of  correction  must  be  left  to  his  discretion, 
as  it  is  to  that  of  the  parent,  under  like  circumstances. 
Within  this  limit  he  has  the  authority  to  determine 
the  gravity  or  heinousness  of  the  offense,  and  to  mete 
out  to  the  offender  the  punishment  which  he  thinks 
his  conduct  justly  merits,  and  hence  the  parent  or 

U  Bishop  Cr.  L.  sec.  886;  Vanvactor  v.  State,  113  Ind.  276, 
15  N.  E.  341 ;  Danenhoffer  v.  State,  69  Ind.  295.  The  punishment 
of  a  pupil  with  undue  severity,  or  with  an  improper  instrument  such 
as  a  hickory  stick,  three-fourths  of  an  inch  in  diameter  at  one  end 
and  one-half  an  inch  at  the  other  and  fifteen  or  eighteen  inches  long, 
used  in  striking  the  palm  of  the  hand  of  a  pupil  from  eight  to  twelve 
strokes,  by  which  the  boy's  hand  was  disabled  for  some  days,  is 
unwarrantable  and  may  serve  in  some  degree  to  indicate  the  animus 
of  the  teacher ;  Decision  of  Supt.  of  Iowa,  June  6,  1874. 

169 


§  70]  OF   SCHOOL   TEACHERS  [Ch.  V 

teacher  is  often  said,  pro  hac  vice,  to  exercise  judicial 
functions.^ 

To  support  a  charge  of  assault  and  battery  against 
a  teacher  for  improper  chastisement,  it  is  necessary 
to  show  that  the  act  complained  of  was  intentionally 
committed.  But  the  intent  may  be  inferred  from  the 
unreasonableness  of  the  method  adopted,  or  in  the 
excessive  force  employed,  and  the  burden  of  proving 
such  unreasonableness  or  excess  rests  upon  the  prosecu- 
tion. In  such  a  case,  in  addition  to  the  general  pre- 
sumption of  his  innocence,  the  teacher  has  also  the 
presumption  of  having  done  his  duty,  in  support  of 
his  defense.^ 

The  legitimate  object  of  chastisement  is  to  inflict 
punishment  by  the  pain  which  it  causes  as  well  as  by 
the  degradation  which  it  implies.  It  does  not,  there- 
fore, necessarily  follow  because  pain  is  produced,  or 
some  abrasion  of  the  skin  results  from  the  effect  of  a 
switch,  that  a  chastisement  was  either  cruel  or  ex- 
cessive. And  a  mere  error  of  judgment,  where  the 
motive  is  proper,  will  not  make  a  case  of  assault  and 
battery.^ 

The  legal  objects  and  purposes  of  punishment  in 
school  are  threefold  :  first,  reformation,  and  the  highest 
good  of  the  pupil ;  second,  the  enforcement  and  main- 
tenance of  correct  discipline  in  the  school ;  and,  third, 
as  an  example  to  like  evil-doers.     And  in  no  case  can 

1  Boyd  V.  State,  88  Ala.  169,  7  So.  268. 

2  Com.  V.  Randall,  4  Gray  (Mass.)  36;  Lander  v.  Seaver,  32  Vt. 
114 ;  State  v.  Alford,  68  N.  C.  322 ;  Com.  v.  Seed,  5  Pa.  L.  Jour.  78. 

3  Vanvactor  v.  State,  113  Ind.  276,  15  N.  E.  341. 

170 


Ch.  V]  RIGHT  TO   CHASTISE   PUPILS  [§  70 

the  punishment  be  justifiable  unless  it  is  inflicted  for 
some  definite  offense  or  offenses  which  the  pupil  has 
committed,  and  the  pupil,  as  a  reasonable  being  under- 
stands or  should  understand  from  what  occurred,  for 
what  the  punishment  is  inflicted.^ 

A  teacher  is  liable  if,  in  correcting  or  disciplining  a 
pupil,  he  acts  maliciously  or  inflicts  a  permanent  in- 
jury, but  he  has  the  authority  to  correct  his  pupil 
when  he  is  disobedient  or  inattentive  to  his  duties, 
and  any  act  done  in  the  exercise  of  this  authority 
and  not  prompted  by  malice  is  not  actionable,  though 
it  may  cause  permanent  injury,  unless  a  person  of 
ordinary  prudence  could  reasonably  foresee  that  a 
permanent  injury  of  some  kind  would  naturally  or 
probably  result  from  the  act. 

There  is  a  distinction  between  the  case  of  an  injury 
inflicted  in  the  performance  of  a  lawful  act  and  one  in 
which  the  act  causing  the  injury  is  in  itself  unlawful 
or  is,  at  least,  a  willful  wrong.  In  the  latter  case  the 
defendant  is  liable  for  any  consequence  that  may  flow 
from  his  act  as  the  proximate  cause  thereof,  whether 
he  could  foresee  or  anticipate  it  or  not ;  but  when  the 
act  is  lawful,  the  liability  depends  not  upon  the  par- 
ticular consequence  or  result  that  may  flow  from  it, 
but  upon  the  ability  of  a  prudent  man,  in  the  exercise 
of  ordinary  care,  to  foresee  that  injury  or  damage  will 
naturally  or  probably  be  the  result  of  his  act.  In  the 
one  case  he  is  presumed  to  intend  the  consequence  of 
his  unlawful  act,  but  in  the  other,  while  the  act  is 

1  State  V.  Mizner,  50  Iowa  145. 
171 


§  701  OF   SCHOOL   TEACHERS  [Ch.  V 

lawful,  it  must  be  performed  in  a  careful  manner, 
otherwise  it  becomes  unlawful,  if  a  prudent  man  in 
the  exercise  of  proper  care  can  foresee  that  it  will 
naturally  or  probably  cause  injury  to  another,  though 
it  is  not  necessary  that  the  evil  result  should  be,  in 
form  foreseen.  The  commission  of  an  act  specifically 
forbidden  by  law,  or  the  omission  or  failure  to  perform 
any  duty  specifically  imposed  by  law,  is  generally 
equivalent  to  an  act  done  with  intent  to  cause  wrong- 
ful injury. 

It  is  not  easy  to  state  with  precision  the  power  which 
the  law  grants  to  schoolmasters  and  teachers,  with 
respect  to  the  correction  of  their  pupils.  It  is  analogous 
to  that  which  belongs  to  parents,  and  the  authority 
of  the  teacher  is  regarded  as  a  delegation  of  parental 
authority.  One  of  the  most  sacred  duties  of  parents 
is  to  train  up  and  qualify  their  children  for  becoming 
useful  and  virtuous  members  of  society.  This  duty 
cannot  be  performed  without  the  ability  to  command 
obedience,  to  control  stubbornness,  to  quicken  dili- 
gence, and  to  reform  bad  habits,  and  to  enable  the 
teacher  to  exercise  this  salutary  sway,  he  is  armed 
with  the  power  to  administer  moderate  correction 
when  he  shall  beUeve  it  to  be  just  and  necessary. 
The  teacher  as  the  substitute  for  the  parent,  is  charged 
in  part  with  the  performance  of  his  duties,  and  in  the 
exercise  of  these  delegated  duties  is  invested  with  his 
power.^ 

If  a  teacher  attempts,  even  without  malice,  to  cor- 

1  State  V.  Pendergrass,  19  N.  C.  (2  Dev.  &  B.  L.)  365;  State  v. 
Burton,  45  Wis.  150. 

172 


Cn.  V]  RIGHT  TO  CHASTISE  PUPILS  [§  70 

rect  a  pupil  in  a  wrongful  manner,  he  is  liable  for  any 
permanent  injury  inflicted  whether  or  not  he  was  able 
to  foresee  that  the  particular  injury  would  be  the 
natural  and  probable  consequence  of  his  act.  But 
he  is  not  liable  for  permanent  injury  inflicted  without 
malice,  in  proper  method  of  correction,  where  a  per- 
manent injury  cannot  be  reasonably  foreseen  as  a 
result  of  the  act.  And,  where  a  teacher,  to  attract  the 
attention  of  a  pupil,  threw  a  pencil  at  him  to  the  injury 
of  an  eye,  it  was  held  that  the  teacher  would  be  liable 
if  he  did  not  act  with  ordinary  care.^ 

But  it  is  not  necessary  that  a  permanent  injury  be 
inflicted,  to  render  the  teacher  civilly  and  criminally 
liable  for  excessive  and  immoderate  punishment. 
Thus,  any  punishment  with  a  rod,  which  leaves  marks 
or  welts  on  the  person  of  the  pupil  for  two  months, 
or  for  a  much  shorter  period  thereafter,  is  immoderate 
and  excessive.^  A  teacher  may  moderately  chastise  a 
pupil  for  infraction  of  a  rule  prohibiting  quarrelling 
and  fighting,  although  the  act  was  done  away  from  the 
school  grounds,  and  outside  of  school  hours.^ 

There  is  no  doubt  a  well-founded  and  growing 
sentiment  against  the  infliction  of  corporal  punish- 
ment in  the  public  schools.  Humanity  is  against  it 
except  in  extreme  cases,  and  the  tendency  of  the 
courts  seems  to  be  that  if  a  teacher  immoderately 

1  Drum  V.  Miller,  135  N.  C.  204,  47  S.  E.  421. 

2  State  V.  Mizner,  50  Iowa  145.  Compare,  Fox  v.  People,  84  111. 
App.  270 ;  Heritage  v.  Dodge,  64  N.  H.  297,  9  Atl.  722 ;  Com.  v. 
Seed,  5  Pa.  L.  Jour.  78. 

3  Deskins  v.  Gose,  85  Mo.  484 ;  Button  v.  State,  23  Tex.  App.  386, 
5  S.W.  122. 

173 


§711  OF   SCHOOL   TEACHERS  [Ch.  V 

and  unreasonably  punishes  a  pupil  he  is  liable  for  the 
injury  inflicted  regardless  of  the  motive  which  prompted 
the  chastisement,  —  that  is  to  say,  the  non-existence 
of  malice  is  not  material.^  Many  school  committees 
now  prohibit  corporal  punishment  in  any  form,  and  by 
statute  in  New  Jersey  the  infliction  of  corporal  punish- 
ment is  entirely  prohibited.^ 

§  71.   Right  to  Expel  Pupil. 

The  teacher  has  a  right  to  suspend  or  expel  a  pupil 
from  a  public  school,  unless  deprived  of  that  power 
by  the  affirmative  action  of  the  school  board.  While 
the  principal  or  teacher  in  charge  of  a  public  school 
is  subordinate  to  the  school  board,  or  board  of  educa- 
tion of  his  district  or  city,  and  must  enforce  rules 
and  regulations  adopted  by  the  board  for  the  govern- 
ment of  the  school,  and  execute  all  its  lawful  orders 
in  that  behalf,  he  does  not  derive  all  his  power  and 
authority  in  the  school,  and  over  his  pupils,  from  the 
affirmative  action  of  the  board.  He  stands,  for  the 
time  being,  in  loco  parentis  to  his  pupils,  and  because 
of  that  relation  he  must  necessarily  exercise  authority 
over  them  in  many  things  concerning  which  the  board 
may  have  remained  silent. 

In  the  school,  as  in  the  family,  there  exists  on  the 
part  of  the  pupils  the  obligations  of  obedience  to  law- 
ful commands,  subordination,  civil  deportment,  respect 
for  the  rights  of  other  pupils,  and  fidelity  to  duty. 

1  Haycraft  v.  Grigsby,  80  Mo.  App.  354.  Compare,  Lander  v. 
Seaver,  32  Vt.  114. 

2  3  N.  J.  Stats,  p.  3049,  sec.  202. 

174 


Ch.  V]  RIGHT  TO  EXPEL  PUPIL  [§  71 

These  obligations  are  inherent  in  any  proper  school 
system,  and  constitute,  so  to  speak,  the  common  law 
of  the  school.  Every  pupil  is  presumed  to  know  this 
law,  and  is  subject  to  it,  whether  it  has  or  has  not  been 
re-enacted  by  the  district  board  in  the  form  of  written 
rules  and  regulations.  Indeed,  it  would  seem  impos- 
sible to  frame  rules  which  would  cover  all  cases  of 
insubordination  and  all  acts  of  vicious  tendency  which 
the  teacher  is  liable  to  encounter  daily  and  hourly. 

The  teacher  is  responsible  for  the  discipline  of  his 
school,  and  for  the  progress,  conduct  and  deportment 
of  his  pupils,  and  it  is  his  imperative  duty  to  maintain 
good  order,  and  to  require  of  his  pupils  a  faithful  per- 
formance of  their  duties.  If  he  fails  to  do  so  he  is 
unfit  for  his  position.  To  enable  him  to  discharge 
these  duties  effectually,  he  must  necessarily  have  the 
power  to  enforce  prompt  obedience  to  his  lawful  com- 
mands, and  for  this  reason  the  law  gives  him  the  power, 
in  proper  cases,  to  inflict  corporal  punishment  on  re- 
fractory pupils. 

But  there  are  cases  of  misconduct  for  which  such 
punishment  is  an  inadequate  remedy.  In  general, 
no  doubt  a  teacher  should  report  a  case  of  that  kind 
to  the  proper  board  for  its  action  in  the  first  instance 
if  no  delay  will  necessarily  result  from  that  course 
prejudicial  to  the  best  interests  of  the  school.  But 
the  conduct  of  the  recusant  pupil  may  be  such  that 
his  presence  in  the  school  for  a  day,  or  an  hour,  may 
be  disastrous  to  the  discipline  of  the  school  and  even 
to  the  morals  of  the  other  pupils.  In  such  a  case  it 
seems  absolutely  essential  to  the  welfare  of  the  school 

175 


§  71]  OF   SCHOOL  TEACHERS  [Ch.  V 

that  the  teacher  should  have  the  power  to  suspend  the 
offender  at  once  from  the  privileges  of  the  school,  and 
he  must  necessarily  decide  for  himself  whether  the 
case  requires  that  remedy.  If  he  suspends  the  pupil 
he  should  promptly  report  his  action,  with  his  reasons 
therefor,  to  the  proper  board. 

It  will  seldom  be  necessary  for  the  teacher  in  charge 
of  a  district  school  to  exercise  this  power  of  suspen- 
sion or  expulsion,  because  usually  he  can  communicate 
readily  with  the  district  board,  and  obtain  the  direc- 
tion and  order  of  the  board  in  the  matter.  But  where 
the  government  of  a  public  school  is  vested  in  a  board 
of  education,  with  a  more  numerous  membership  than 
district  boards,  and  which  holds  stated  meetings  for 
the  transaction  of  business,  the  facilities  for  speedy 
communication  with  the  board  may  be  greatly  de- 
creased and  more  time  must  usually  elapse  before  the 
board  can  act  upon  a  complaint  of  the  teacher.  In  those 
schools  the  occasions  which  require  the  action  of  the 
teacher  in  the  first  instance  will  occur  more  frequently 
than  in  the  district  schools  where  the  board  is  more 
easil}^  accessible ;  but  the  rule  is  the  same  irrespective 
of  the  accessibihty  of  the  controlling  board.^ 

^  Burpee  v.  Burton,  45  Wis.  150. 


176 


CHAPTER  VI 

OF  PUPILS 

§  72.   Rights  and  Duties. 

Although  at  common  law  the  child  had  no  legal 
right  to  an  education/  modern  statutes  in  the  nature 
of  compulsory  education  laws  give  to  every  child  a 
right  to  attend  the  public  schools. 

This  right,  however,  is  not  an  unqualified  right  but 
is  subject  to  such  reasonable  regulations  as  to  numbers 
and  qualifications  of  pupils  to  be  admitted  to  the 
respective  schools,  and  as  to  other  school  matters,  as 
the  school  authorities  shall  from  time  to  time  pre- 
scribe.^ 

Where  the  statute  of  the  State,  enacted  in  obedience 
to  the  special  command  of  the  constitution,  provides 
that  the  legislature  shall  provide  a  system  of  public 
schools,  by  which  a  school  shall  be  kept  up  and  sup- 
ported in  each  district,  the  advantage  or  benefit  thereby 
vouchsafed  to  each  child  is  one  derived  and  secured  to 
it  under  the  highest  sanction  of  positive  law,  and  is  a 
right  just  as  distinctive  as  a  vested  right  in  property, 
and  as  such  is  entitled  to  protection  by  all  the  guarantees 
by  which  other  legal  rights  are  protected  and  secured 

^  See  §  7,  supra. 

2  Alvord  V.  Chester,  180  Mass.  20,  61  N.  E.  263. 

177 


§  72]  OF   PUPILS  [Ch.  VI 

to  the  possessor.^  But  the  privilege  accorded  by  the 
law  of  a  State  to  the  youth  of  the  State,  of  attending 
the  pubhc  schools  maintained  at  the  expense  of  the 
State,  is  not  a  privilege  or  immunity  appertaining  to  a 
citizen  of  the  United  States  as  such ;  and  it  necessarily 
follows  that  no  person  can  demand  admission  as  a 
pupil  to  any  such  school  because  of  the  mere  status 
of  citizenship.^ 

The  exclusion  of  a  child  from  a  school  gives  no  right 
of  action  against  the  school  committee,  inasmuch  as 
such  officers  are  not  ordinarily  accountable  to  in- 
dividuals for  the  manner  in  which  they  exercise  their 
public  functions,  unless  some  private  right  is  violated, 
which  the  individual  holds  as  property,  separately 
from  the  community  at  large.  The  right  to  attend 
school  is  not  such,  but  is  a  political  right  belonging 
to  such  aggrieved  party  as  a  member  of  the  com- 
munity, and  in  common  with  all  others  of  the  same 
conomunity.^ 

The  use  of  pupils  of  a  pubhc  school  as  subjects  of 
practice  in  teaching  by  the  better  qualified  students 
as  teachers  under  supervision  of  regular  teachers  has 
been  held  not  an  invasion  of  the  pupils'  legal  rights,^ 
and  pupils  over  twenty-one  years  of  age  who  are 
regularly  accepted  pupils  in  a  public  school  are  under 
the  same  restrictions  and  liabilities  as  if  they  were 
under  that  age.^ 

1  Ward  V.  Flood,  48  Cal.  36. 

2  Ibid. 

^  Learock  v.  Putnam,  111  Mass.  499. 

4  Spedden  v.  Board,  &c.,  74  W.  Va.  181,  81  S.  E.  724. 

5  Stevens  v.  Fassett,  27  Me.  266. 

178 


Ch.  VI]  ADMISSION  [§  73 

§  73.   Admission. 

The  authorities  of  the  public  schools  under  the  law 
owe  a  duty  to  the  public  to  admit  and  keep  within  the 
schools  all  children  who  come  within  the  lawfully- 
prescribed  rules  and  whose  parents  or  guardians  see 
fit  to  enter  them.  When,  therefore,  such  school 
authorities  willfully,  wantonly,  and  maliciously  re- 
fuse to  admit  such  children,  a  public  wrong  is  com- 
mitted, which  may  be  remedied,  so  far  as  the  public 
is  concerned,  by  indictment  for  malpractice,  or  other 
appropriate  remedy.  Out  of  this  breach  of  duty 
damage  arises  to  the  parent,  as  well  as  to  the  child. 
The  parent,  therefore,  has  the  right  to  appeal  to  the 
courts  to  compel  the  child  to  be  admitted  or  reinstated, 
as  the  case  may  be,  and  also  to  appeal  to  the  courts 
by  his  action  for  damages  for  the  amount  which  he 
would  be  required  to  expend  in  the  education  of  his  child. 
The  child  would  also  have  a  right  against  the  individ- 
uals thus  wantonly  and  maliciously  depriving  him  of  any 
benefit  which  is  secured  to  him  by  the  law  in  the  event 
the  parent  sees  proper  to  enter  him  in  the  school.^ 

When  the  law  requires  one  to  do  an  act  for  the  benefit 
of  another,  or  to  forbear  the  doing  of  that  which  may 
injure  another,  though  no  action  be  given  in  express 
terms,  upon  the  accrual  of  damage  the  party  may 
recover.  It  follows,  therefore,  that  when  a  parent 
enters  his  child  in  the  public  schools,  the  law  requires 
that  the  authorities  of  the  school  shall  do  each  and 
every  act  required  by  the  law  which  will  be  for  the 

^  Broom's  Common  Law,  9th  London  ed.,  757-759, 
179 


§  73]  OF   PUPILS  [Ch.  VI 

benefit  of  the  child,  and  also  that  the  authorities  shall 
refrain  from  doing  any  act  which  will  injure  the  child. 
If  the  school  authorities  wantonly  and  maliciously 
refuse  to  discharge  the  duty  thus  imposed  upon  them, 
the  child  will  have  a  right  of  action  against  the  in- 
dividuals who  commit  the  wrongful  act. 

Enumeration  is  not  necessary  to  attach  children  to 
a  school  district  inasmuch  as  it  is  residence  and  not 
enumeration  which  fixes  the  attachment.^  And  per- 
sons residing  on  lands  purchased  by  or  ceded  to  the 
United  States  for  navy  yards,  forts,  and  arsenals, 
and  where  there  is  no  other  reservation  of  jurisdiction 
to  the  State  than  that  of  a  right  to  serve  civil  and 
criminal  process  on  such  lands,  are  not  entitled  to 
the  benefit  of  the  common  schools  for  their  children, 
in  the  towns  in  which  such  lands  are  situated. ^ 

Where  the  managers  of  a  charitable  institution  are 
provided  by  the  State  with  funds  for  the  education  of 
children  who  become  inmates,  if  they  neglect  to  provide 
educational  facilities  the  inmates  are  not  entitled  to 
free  admission  to  the  schools  of  the  district  in  which 
the  institution  is  located.^  But  the  minor  children 
of  paupers,  supported  at  the  county  poor  farm,  have 
the  right  of  admission  into  the  public  schools  of  the 
district  in  which  the  poor  farm  is  located ;  •*  although 

1  Greenlee  v.  Newton,  &c.,  104  N.  E.  (Ind.)  610.  A  child  is 
entitled  to  school  privileges  in  a  district  if  he  is  residing  there; 
Yale  V.  School  District,  59  Conn.  491,  22  Atl.  295. 

2  Opinion  of  Justices,  1  Mete.  (Mass.)  580. 

3  Com.  V.  Directors,  &c.,  164  Pa.  St.  607,  30  Atl.  509;  State  v. 
Directors,  &c.,  10  Ohio  St.  448. 

4  School  District  v.  Pollard,  55  N.  H.  503. 

180 


Ch.  VI]  SCHOOL  AGE  [§  74 

children  kept  in  a  private  institution  chartered  for 
their  support  and  education,  and  exempt  from  taxa- 
tion, are  not  entitled  to  admission  into  the  district 
schools  in  which  the  institution  exists.^ 

Where  an  orphan  child  is  placed  by  a  charitable 
society  to  board  in  the  family  of  a  resident  of  a  school 
district,  and  the  child  is  treated  as  a  member  of  that 
family,  such  child  is  a  resident  of  the  school  district 
and  as  such  is  entitled  to  the  school  privileges  of  other 
residents.-  And  if  orphan  children  or  children  of  a 
non-resident,  of  lawful  school  age,  are  residing  within 
a  school  district  in  the  care  of  relatives  or  strangers 
who  care  for  them  and  control  them,  such  children 
are  entitled  to  attend  the  public  schools  of  that  dis- 
trict.' 

If  a  pupil  is  refused  readmission  into  a  public  school, 
mandamus  and  not  injunction  is  the  proper  remedy  to 
procure  reinstatement.^ 

§  74.   School  Age. 

A  constitutional  provision  requiring  the  legislature 
to  provide  for  the  instruction  of  children  between  the 
ages  of  five  and  eighteen  years,  is  not  such  a  limitation 
as  will  prevent  the  legislature  from  providing  for  the 
instruction  of  children  between  the  ages  of  five  and 
twenty  years.  ^ 

1  Lake  Farm  v.  Kalamazoo,  179  Mich.  171,  146  N.  W.  115. 

2  People  V.  Hendrickson,  125  N.  Y.  App.  Div.  256,  109  N.  Y.  S. 
403. 

'  Muskegon  v.  Wright,  176  Mich.  6,  141  N.  W.  866.  But  see, 
Black  V.  Graham,  238  Pa.  St.  381,  86  Atl.  266. 

4  McCaskill  v.  Bower,  126  Ga.  341,  54  S.  E.  942. 

5  In  re  Newark,  &c.,  70  Atl.  (N.  J.)  881. 

181 


§  75]  OF  PUPILS  [Ch.  VI 

A  rule,  the  effect  of  which  is  to  exclude  from  school 
a  child  who  becomes  of  school  age  a  few  days  after 
the  beginning  of  the  fall  term,  until  the  beginning  of 
the  following  spring  term,  is  not  reasonable.^ 

§  75.   Non-Residents. 

A  constitutional  provision  that  district  schools 
shall  be  free  and  without  charges  for  tuition,  to  all 
between  certain  ages,  applies  only  to  the  children  of 
each  particular  district.^ 

Where  the  statute  provides  that  the  local  board 
may  admit  non-resident  pupils  to  the  public  schools  of 
their  district,  on  such  terms  as  they  may  prescribe, 
the  board  has  no  right  to  admit  such  non-resident 
pupils  at  a  less  rate  per  scholar  than  the  inhabitants 
of  the  district  pay  by  taxation  for  their  children,  and 
have  no  right  to  admit  them  at  all  to  the  exclusion  of 
resident  children  who  otherwise  would  attend.^  And 
where  a  rate  is  fixed  by  recorded  resolution  of  the 
school  board,  for  the  tuition  of  a  non-resident  pupil, 
it  is  not  necessary  to  the  liability  of  a  parent  that 
he  be  notified  of  such  resolution.'* 

Where  a  district  has  no  right  to  receive  into  its 
schools  the  children  whose  parent  or  guardian  resides 
in  another  State,  a  contract  for  the  tuition  of  such 
children  made  between  the  authorities  and  parents  or 
guardians  of  such  children  cannot  be  enforced.^ 

1  Board,  &c.,  v.  Bolton,  85  III.  App.  92. 

2  State  V.  Joint  School  District,  65  Wis.  631,  27  N.  W.  829. 

3  Irvin  V.  Gregory,  86  Ga.  605,  13  S.  E.  120. 

^  School  District  v.  Yerrington,  108  Mich.  414,  66  N.  W.  324. 
5  Haverhill  v.  Gale,  103  Mass.  104. 

182 


Ch.  VI]  CONTROL  OP  PUPILS  [§  77 

A  previous  arrangement  is  necessary  to  support  the 
claim  of  one  district  against  another  for  tuition  given 
to  children  of  that  district  where  the  statute  authorizes 
the  board  of  education  to  make  such  contracts,  mere 
acquiescence  not  being  sufBcient.^ 

§  76.   Tuition  Fees. 

A  tuition  fee  may  be  exacted  from  those  who  are 
over  the  school  age,  and  also  from  non-residents  who 
attend  a  public  school,  but  a  fee  may  not  be  exacted 
from  residents  entitled  to  attend  the  public  schools, 
for  manual  training  given  as  a  part  of  the  curriculum 
therein.^ 

Temporary  residence  within  a  school  district  during 
the  scholastic  year,  for  the  primary  purpose  of  attend- 
ing the  public  school  therein,  debars  one  from  receiving 
free  tuition.^  But  a  foster  parent  has  a  right  to  have 
his  child,  who  has  not  been  legally  adopted,  attend 
the  public  schools  of  the  district  in  which  he  lives  with- 
out cost  for  tuition.^ 

§  77.   Control  of  Pupils. 

The  power  of  school  authorities  over  pupils,  except 
for  the  parents'  right  of  control,  extends  to  all  acts 
detrimental  to  the  best  interests  of  the  school,  whether 
committed  in  school  hours  or  after  the  pupils  return 

1  Board,  &c.,  v.  Board,  &c.,  50  Ohio  St.  439,  38  N.  E.  23 ;  Cascade, 
&c.,  V.  Lewis,  &c.,  43  Pa.  St.  318. 

2  Maxcy  v.  Oshkosh,  144  Wis.  238,  128  N.  W.  899. 

3  State  V.  Board,  &c.,  96  Wis.  95,  71  N.  W.  123 ;  Barnard  v. 
Matherly,  84  Mo.  App.  140. 

4  McNish  V.  State,  74  Neb.  261,  104  N.  W.  186. 

183 


§  77]  OF   PUPILS  [Ch.  VI 

home.^  And  while  school  authorities  should  be  up- 
held in  their  control  and  regulation  of  the  school 
system,  their  authority  is  not  unlimited  but  must  be 
exercised  to  further  the  best  interests  of  the  pupils 
with  due  regard  to  the  natural  and  legal  rights  of  par- 
ents.^ 

Under  the  doctrine  of  parens  patrice  the  State,  as 
sovereign,  has  the  power  of  guardianship  over  persons 
under  disabilities.^  For  this  reason,  the  school  direc- 
tors, as  representatives  of  the  government,  have 
broader  powers  of  control  over  minor  pupils,  they 
being  not  sui  juris,  than  courts  have  over  persons 
who  are  sui  juris  in  case  of  contempt  of  court  com- 
mitted outside  the  presence  of  the  court  and  not  in 
reference  to  a  case  pending  therein.  So  we  find  it 
held  that  the  school  authorities  have  the  power  to 
suspend  a  pupil  for  an  offense  committed  outside  of 
school  hours  and  not  in  the  presence  of  the  teacher, 
which  has  a  direct  and  immediate  tendency  to  in- 
fluence the  conduct  of  other  pupils  while  in  the  school- 
room, to  set  at  naught  the  proper  discipline  of  the  school, 
to  impair  the  authority  of  the  teachers  and  to  bring 
them  into  ridicule  and  contempt, "*  as,  for  example,  the 
publication  in  a  local  newspaper  of  a  poem  satirizing 

1  Gott  V.  Berea  College,  156  Ky.  376,  161  S.  W.  204 ;  State  v. 
District  Board,  &c.,  135  Wis.  619,  116  N.  W.  232. 

2  State  V.  Ferguson,  95  Neb.  63,  144  N.  W.  1039. 

3  Fontain  v.  Ravenel,  17  How.  (U.  S.)  393,  15  L.  ed.  80. 

4  State  V.  District  Board,  &c.,  135  Wis.  619,  116  N.  W.  232,  67 
Cent.  L.  J.  214,  in  note  to  which  see  an  interesting  discussion  of  this 
case ;  Deskins  v.  Gose,  85  Mo.  485 ;  Hutton  v.  State,  23  Tex.  App. 
386,  5  S.  W.  122;  Wayland  v.  Hughes,  43  Wash.  441,  86  Pac.  642; 
Kinzer  v.  Directors,  &c.,  129  Iowa  441,  105  N.  W.  686. 

184 


Ch.  VI]  SUSPENSION  AND  EXPULSION  [§  78 

the  regulations  of  the  school.  And  the  suspension  of 
pupils  for  such  cause  until  they  shall  apologize  is  not 
an  abuse  of  the  discretion  of  the  school  authorities.^ 
Such  power  is  essential  to  the  preservation  of  order, 
decency,  decorum,  and  good  government  in  the  public 
schools. 

A  member  of  a  district  school  committee  has  a 
right  to  eject  from  the  schoolhouse  a  pupil  who  uses 
profane  language  and  refuses  to  desist  therefrom  when 
requested,  if  no  unnecessary  force  is  used  to  that  end.^ 

§  78.   Exclusion,  Suspension  and  Expulsion. 

A  child  at  common  law  was  at  the  mercy  of  an 
arbitrary  parent  whether  he  should  be  placed  at 
school  or  not,  and  so  he  is  at  the  mercy  of  an  arbitrary 
parent  who  may  so  conduct  himself  as  to  deprive  the 
child  of  the  benefits  to  be  derived  from  education.  A 
child  who  is  entered  at  a  public  school  must  be  required 
to  conduct  himself  so  as  not  to  interfere  with  the  dis- 
cipline of  the  school,  and,  if  this  duty  is  encumbent 
upon  the  child,  it  would  seem  that  for  a  stronger 
reason  a  similar  duty  rests  upon  the  parent  who  is 
the  real  beneficiary  of  the  system. 

Public  education  which  fails  to  instil  in  the  youth- 
ful mind  and  heart  obedience  to  authority,  both  public 
and  private,  would  be  more  of  a  curse  than  a  blessing, 
and  the  parent  who  in  the  schoolroom,  or  in  the  vicinity 
of  the  school,  in  the  presence  of  the  children  so  acts 
as  to  create  the  impression  that  the  true  way  of  life 

1  State  V.  District  Board,  &c.,  135  Wis.  619,  116  N.  W.  232. 

2  Peck  V.  Smith,  41  Conn.  442. 

185 


§  78]  OF  PUPILS  [Ch.  VI 

is  lawlessness  and  utter  disregard  of  the  rights  of  other 
people  should  not  only  receive  the  punishment  which 
the  statutes  of  the  State  might  inflict  upon  him,  but 
should  also  be  deprived  of  the  benefit  of  the  fund 
which  is  provided  to  pay  the  expenses  which  natural 
and  moral  duty  would  otherwise  require  him  to  bear. 

But  this  misconduct  on  the  part  of  the  parent 
does  not  apply  to  matters  extraneous  to  the  discipline 
and  welfare  of  the  school  and  of  the  pupils,  and,  as 
the  right  of  the  child  to  attend  a  public  school  is  de- 
pendent on  the  good  conduct  of  the  parent  as  well  as 
of  the  child,  both  must  submit  to  the  reasonable 
rules  and  regulations  of  the  school,  and  the  parent 
must  so  conduct  himself  as  not  to  destroy  the  influence 
and  authority  of  the  school  management  over  the 
children  whenever  he  comes  in  contact  with  the  school 
authorities,  whether  commissioners,  officers,  or  teachers, 
under  such  circumstances  that  his  conduct  would  be 
likely  to  influence  the  conduct  of  his  children. 

The  schoolmaster  has  always  stood  in  loco  parentis  ^ 
for  certain  purposes,  and,  notwithstanding  the  change 
from  private  schools  into  public  schools,  the  school- 
master of  the  present  is  and  ought  to  be  in  the  place 
of  a  parent  in  a  great  many  particulars.  It  is  there- 
fore a  duty  which  the  parent  owes  not  only  to  the 
master  but  to  the  pupil  himself  that  he  who  stands 
in  the  parents'  shoes  should  not  be  impeded  in  dis- 
charging a  duty  which  the  parent  has  voluntarily 
placed  upon  him.     Therefore,   it   necessarily   follows 

1  Burfee  v.  Burton,  45  Wis.  150. 
186 


Ch.  VI]  SUSPENSION  AND  EXPULSION  [§  78 

that  when  the  parent  has  taken  advantage  of  the 
school  fund  to  discharge  the  burden  which  he  would 
otherwise  have  to  carry  himself,  and  has  placed  his 
child  under  the  control  of  the  schoolmaster  thus  pro- 
vided, any  misconduct  on  his  part  which  would  inter- 
fere with  the  master  in  discharging  the  duty  which  he 
owes  to  such  child  would  result  under  the  present 
system,  as  it  always  did  under  the  old  system,  in  the 
exclusion  of  the  child  from  the  benefits  to  be  derived 
from  the  services  of  the  master. 

As  the  State,  for  the  purpose  of  aiding  a  parent  in 
discharging  a  duty,  furnishes  a  fund  to  pay  the  expenses 
incident  to  the  education  of  his  child,  it  is  the  right  of 
the  State,  through  its  constituted  authorities,  to  re- 
quire of  the  parent  that  he  shall  do  nothing  inconsistent 
with  the  peace,  good  order,  and  authority  of  the  system 
which  is  provided  for  his  benefit. 

Therefore,  when  a  parent  goes  to  a  schoolroom  of  a 
lawfully  established  public  school  and  in  the  presence 
of  his  or  her  children  and  other  pupils  publicly  calls 
and  questions  the  justice  or  correctness  of  a  decision 
made  by  the  teacher  in  a  matter  of  discipline  relating 
to  such  children,  uses  abusive  and  insulting  language 
to  such  teacher,  and  acts  in  such  a  manner  as  to  in- 
terrupt the  exercises  of  the  school,  and  conducts  him- 
self or  herself  in  such  manner  as  to  bring  the  teacher 
and  the  discipline  of  the  school  into  contempt  in  the 
eyes  of  the  pupils,  it  is  not  only  lawful  but  it  is  the 
duty  of  the  authorities  of  the  school  in  the  protection 
of  the  teacher  whom  they  have  placed  on  duty,  as 
well  as  to  sustain  the  character  and  discipline  of  the 

187 


§  78]  OF  PUPILS  [Ch.  VI 

school,  to  exclude  from  the  schoolroom  the  children 
of  such  parent,  although  those  thus  excluded  had  not 
been  guilty  of  a  violation  of  any  rule  of  the  school.^ 

To  justify  an  exclusion  or  suspension  of  a  child, 
it  is  not  absolutely  essential  that  there  should  be  a 
promulgated  rule  which  has  been  in  terms  violated, 
either  by  the  child  or  by  the  parent,  for,  if  the  act 
complained  of  is  such  that  in  itself  it  would  be  sub- 
versive of  the  good  order  and  discipline  in  the  school, 
then  the  mere  failure  of  the  school  board  to  declare 
that  unauthorized  which  every  intelligent  man  must 
know  could  not  be  allowed,  would  not  prevent  the 
school  board  from  dealing  with  the  person  who  w^as 
guilty  of  such  an  act.  If,  however,  the  act  in  itself 
be  harmless  but  may  be  harmful  on  account  of  the 
peculiar  conditions  surrounding  the  school  and  its 
authorities,  then  there  should  be  a  prescribed  rule 
before  the  act  could  be  complained  of  as  one  which 
would  forfeit  the  right  to  patronize  the  school. 

It  requires  no  argument  to  sustain  the  proposition 
that  an  act  of  disorder  in  the  schoolroom  calculated 
to  bring  into  contempt  the  authority  of  the  school, 
as  well  as  the  individual  in  charge  for  the  time  being, 
should  be  met  with  such  punishment  as  v/ould  be 
calculated  to  impress  the  pupils  -with  the  importance 
of  obedience  and  respect  to  constituted  authoritj^ 
Children  are  too  much  disposed  naturally  to  look 
with  contempt  upon  authority,  especially  when  repre- 
sented by  a  schoolmaster,  and  parents  should  be  re- 

1  Board,  &c.,  v.  Purse,  101  Ga.  422,  28  S.  E.  896. 
188 


Ch.  VI]  SUSPENSION  AND  EXPULSION  [§  78 

strained  from  encouraging  this  tendency  so  dangerous 
in  its  nature  to  private  and  public  welfare. 

It  is  generally  conceded  that  in  such  a  case  prosecu- 
tion under  the  criminal  laws  of  the  State  would  be 
justified  and  proper.  This  would  satisfy  the  public 
wrong  growing  out  of  a  violation  of  the  penal  laws ; 
but  another,  and  it  may  not  be  unwise  to  say  a  greater, 
wrong  has  been  done  than  the  mere  infraction  of  the 
criminal  law,  and  the  only  adequate  remedy  for  such 
a  wrong  is  one  which  will  cause  the  parents  to  under- 
stand that  that  which  is  given  to  them  for  their  benefit 
primarily,  and  for  the  benefit  of  their  children  second- 
arily, will  be  withdrawn  from  them  and  their  children 
whenever  they  do  an  act  which  in  its  effect  will  be 
prejudicial  to  the  system  which  is  maintained  for 
their  benefit. 

A  teacher  has  the  right  to  require  a  pupil  to  answer 
questions  which  tend  to  elicit  facts  concerning  his 
conduct  in  school,  and  a  pupil  is  answerable  for  acts 
which  tend  to  produce  merriment  in  the  school  or  to 
degrade  the  teacher.  A  teacher  may  accordingly  sus- 
pend a  pupil  from  school  for  refusing  to  answer  a 
question  concerning  his  conduct.^ 

Where  a  child  is  excluded  unlawfully  from  a  public 
school  the  right  of  action  against  the  public  officers 
is  exclusively  in  the  parent  when  the  public  officers 
act  without  maliciousness  or  wantonness,  but  if  the 
act  of  the  pubfic  officers  in  excluding  the  child  is  done 
wantonly  or  mahciously,  the  child  will  have  right  of 

^  Decision  of  Supt.  of  Iowa,  June  8,  1874. 
189 


§  78]  OF   PUPILS  [Ch.  VI 

action  against  such  officers.^  A  pupil  cannot  be  sus- 
pended from  the  benefits  of  a  pubUc  school  for  an 
injury  to  property,  unless  the  injury  was  caused  will- 
fully or  maliciously.  An  injury  done  by  accident,  or 
mere  negligence,  is  not  a  sufficient  cause  for  such 
discipline. 

It  is  not  necessary  that  a  pupil  shall  be  guilty  of  a 
criminal  act  before  he  can  be  suspended  or  expelled 
from  the  school.  It  is  a  sufficient  cause  for  such  dis- 
cipline if  he  be  guilty  of  some  grossly  willful  or  malicious 
act,  of  detriment  to  the  school.  If  the  act  is  merely 
careless  or  negligent  it  is  not  a  sufficient  cause  for 
such  summary  punishment.  It  must  be  a  gross  act 
and  not  some  petty  or  trivial  offense  against  the  rules, 
or  the  pupil  must  have  been  persistent  in  disobedience 
of  the  proper  and  reasonable  rules  and  regulations  of 
the  school. 

As  a  punishment  for  a  careless  act,  even  though 
negligent,  if  it  is  not  willful  or  malicious,  the  right  of 
suspension  or  expulsion  from  the  school  does  not  exist. ^ 

It  is  neither  desirable  nor  permissible  that  a  child 
may  be  excluded  from  the  public  schools  because  by  a 
careless  or  negligent  act,  without  malice  or  willfulness, 
it  has  injured  or  broken  school  property  to  such  an 
extent  that  it  is  beyond  its  power,  or  that  of  its  parent 
or  guardian,  to  make  compensation  for  it.  This 
would  be  the  effect  of  the  rule  if  carried  out,  in  many 
cases,  and  might  deprive  poor  children  who  are  care- 
less, as  all  children  are  careless,  of  the  right  to  a  common 

1  McCormick  v.  Burt,  95  111.  263 ;  Dritt  v.  Snodgrass,  66  Mo.  286. 

2  Holman  v.  Trustees,  &c.,  77  Mich.  605,  43  N.  W.  996. 

190 


Ch.  VI]  SUSPENSION  AND  EXPULSION  [§  78 

school  education  which  the  laws  and  policy  of  our 
government  have  guaranteed  to  them  so  well  that  the 
parent  or  guardian  is  punished  if  he  neglects  or  refuses 
to  give  the  children  under  his  charge  the  benefit  of  the 
public  schools.  And  a  writ  of  mandamus  will  lie 
against  the  school  committee  to  compel  them  to  rein- 
state a  pupil  suspended  or  expelled  by  their  order, 
for  accidentally  breaking  a  window  which  he  refuses 
to  replace,  there  being  no  averment  that  it  was  done 
maliciously  or  willfully.^ 

It  is  unlawful  to  exclude  a  pupil  from  a  public  school 
for  alleged  misconduct  without  giving  the  pupil  an 
opportunity  which  he  applies  for,  to  be  heard  upon  the 
facts  involved  in  the  alleged  misconduct,  and  an  action 
will  lie  against  the  town  for  the  injury,  notwithstanding 
the  fact  that  the  court  found  he  was  disrespectful  to 
his  teacher." 

The  power  of  exclusion  is  not  a  merely  arbitrary 
power,  to  be  exercised  without  ascertaining  the  facts. 
It  is  settled  in  the  management  of  the  public  schools, 
that  when  a  school  committee  acts  in  good  faith  while 
exercising  the  plenary  powers  conferred  upon  them 
by  statute,  and  order  the  permanent  exclusion  of  a 
pupil  therefrom,  no  suit  can  be  maintained  by  him 
because  of  their  action.^     And  a  principal  of  a  public 


1  Holman  v.  Trustees,  &c.,  77  Mich.  605,  43  N.  W.  996. 

2  Bishop  V.  Rowley,  165  Mass.  460,  43  N.  E.  191. 

3  Morrison  v.  Lawrence,  186  Mass.  459,  72  N.  E.  91 ;  Watson  v. 
Cambridge,  157  Mass.  563,  32  N.  E.  864 ;  Bishop  v.  Rowley,  165 
Mass.  460-462,  43  N.  E.  191.  By  statute  in  Massachusetts  such  an 
order  is  not  considered  final,  and  the  pupil,  if  his  parent  or  guardian 
desires,    must  be   granted  a   hearing;    otherwise   such   exclusion 

191 


§  78]  OF   PUPILS  [Cn.  VI 

school  may  refuse  admission  to  a  child  whose  educa- 
tion is  insufficient  to  comply  with  the  requirements 
of  the  lowest  grade  of  that  school.^ 

When  the  real  ground  for  exclusion  from  a  particular 
school  or  grade  is  failure  of  the  pupil  to  maintain  a 
proper  standard  of  scholarship  and  there  is  offered 
to  the  pupil  opportunity  to  attend  another  school 
adapted  to  his  ability  and  accomplishments,  there  is 
no  illegal  exclusion.  And  when  the  real  ground  for 
exclusion  is  not  misconduct  there  is  no  obligation  on 
the  part  of  the  school  committee  to  grant  a  hearing. 
Failure  to  attain  a  given  standard  of  excellence  is 
not  misconduct  in  itself.^  And  a  pupil  may  be  ex- 
pelled for  refusing  to  attend  a  class  where  his  work 
is  revised  by  another  student  acting  as  assistant  to  a 
teacher.^ 

A  pupil  who  has  been  drunk  and  disorderly  in  viola- 
tion of  an  ordinance  of  a  town,  may  be  suspended 
from  a  public  school,  although  the  offense  was  not 
committed  in  or  about  the  school  or  school  grounds."* 
And  where  a  pupil  at  a  pupils'  meeting  criticises  the 
school  authorities,  he  may  be  expelled.^ 

Where  a  teacher  refused  to  receive  two  boys  in 
school  who  appeared  on  a  warm  day  without  collars 
and  with  the  neckbands  of  their  shirts  turned  under, 

becomes  unlawful.  Mass.  Rev.  Laws.  ch.  44,  sec.  8;  see  also, 
Jones  V.  Fitchburg,  211  Mass.  66,  97  N.  E.  612. 

1  Ward  V.  Flood,  48  Cal.  36. 

2  Barnard  v.  Shelburne,  216  Mass.  19,  102  N.  E.  1095. 

3  Wulff  V.  Wakefield,  221  Mass.  427,  109  N.  E.  358. 

4  Douglas  V.  Campbell,  89  Ark.  254,  116  S.  W.  211. 

^  Wooster  v.  Sunderland,  —  Cal.  App.,  — ,  148  Pac.  959. 

192 


Ch.  VI]  SUSPENSION  AND  EXPULSION  [§  78 

the  State  Board  of  Education  held  that  such  exclusion 
was  improper.^ 

Under  a  statute  which  provides  that  "  a  child  un- 
lawfully excluded  from  any  public  school  shall  recover 
damages  therefor  in  an  action  of  tort,  to  be  brought 
in  the  name  of  such  child  by  his  guardian  or  next 
friend  against  the  city  or  town  by  which  such  school 
is  supported  "  no  cause  of  action  arises  unless  the 
exclusion  is  by  the  proper  authorities  who  represent 
the  city  or  town.^ 

A  teacher  has  no  authority  to  exclude  a  child  from 
school,  unless  the  act  is  in  an  emergency  or  under  the 
order  of  the  school  committee.  The  law  vests  in  the 
school  committee  the  charge  and  superintendence  of 
the  schools,  and  they  alone  have  the  right  to  exclude 
any  child  from  school.  If  a  teacher  sends  a  child 
home  from  school,  without  evidence  of  authority  to 
do  so  by  the  school  committee,  an  appeal  to  the  school 
committee  and  confirmation  by  them  is  necessary  to 
perfect  a  right  of  action.^  And  when  a  teacher  sends 
a  child  home  as  a  punishment,  it  is  not  an  exclusion 
from  the  school  for  which  the  parent  may  sue  the  city 
or  town.  To  adopt  such  a  rule  as  law  would  lead 
to  vexatious  litigation  and  impair  the  discipline  and 
usefulness  of  the  schools.* 

Where  a  school  board  illegally  orders  a  change  in 

1  N.  J.  State  Board  of  Education,  Feb.  5,  1916. 

2  Davis  V.  Boston,  133  Mass.  103. 

3  Ibid. 

^  Spear  v.  Cummings,  23  Pick.  (Mass.)  224 ;  Sherman  v.  Charles- 
town,  8  Cush.  (Mass.)  160 ;  Hodgkins  v.  Rockport,  105  Mass.  475 ; 
Learock  v.  Putnam,  111  Mass.  499 ;  Davis  v.  Boston,  133  Mass.  103. 

193 


§  78]  OF   PUPILS  [Ch.  VI 

text-books,  a  pupil  not  complying  with  a  regulation 
pertaining  thereto  cannot  be  legally  excluded  from 
the  school  and  if  excluded  may  obtain  reinstatement 
by  mandamus.^  And  if  a  parent  sustains  some  direct 
pecuniary  injury  by  reason  of  an  unlawful  suspension 
of  his  child  from  a  public  school,  he  may  maintain 
an  action  for  damages  therefor ;  otherwise  his  remedy 
is  by  mandamus  to  compel  reinstatement.^ 

A  statutory  right  to  an  opportunity  for  an  expelled 
pupil  to  be  heard  before  the  school  committee,  means 
a  full  opportunity  unrestricted  by  procedure  that 
will  amount  to  coercion  of  witnesses,  or  suppression 
of  relevant  evidence.  But  if  a  school  committee  acts 
in  good  faith  in  determining  the  facts  in  a  particular 
case,  its  decision  cannot  be  revised  by  the  courts.^ 
If  a  hearing  in  regard  to  the  exclusion  of  a  pupil  is  in 
good  faith,  it  need  not  be  conducted  with  the  formality 
of  a  trial  in  court,  and  a  material  mistake  innocently 
made  by  a  school  committee  in  conducting  a  hearing 
will  not  make  the  exclusion  unlawful.  And  where 
legislation  gives  a  remedy  to  a  child  "  unlawfully 
excluded  "  from  a  public  school,  the  city  or  town 
becomes  liable  for  the  possible  arbitrary  and  willfully 
unjust  action  of  a  school  committee  in  excluding  a 
child  from  school.^ 

When  a  pupil  has  been  expelled  from  a  public  school, 
a  court  will  not  review  the  decision  of  the  school 

1  Harley  v.  Lindemann,  129  Wis.  514,  109  N.  W.  570. 

2  Douglas  V.  Campbell,  89  Ark.  254,  116  S.  W.  211. 

3  Bishop  V.  Rowley,  165  Mass.  460,  43  N.  E.  191. 

4  Morrison  v.  Lawrence,  181  Mass.  127,  63  N.  E.  400. 

194 


Ch.  VI]  VACCINATION  [§  79 

authorities  unless  fraud,  corruption  or  gross  injustice 
is  shown. ^ 

§  79.   Health  Regulations.  —  Vaccination. 

In  the  enforcement  of  health  regulations  the  school 
authorities  may  employ  a  suitable  person  to  ascertain 
the  health  of  pupils  in  attendance  at  a  public  school.^ 
And  a  school  board  has  the  power  to  adopt  reasonable 
health  regulations  for  the  benefit  of  the  pupils  and  the 
general  pubHc.  To  that  end  they  may  exclude  from 
the  schools  those  who  do  not  comply  with  a  regulation 
requiring  a  certificate  of  vaccination  as  a  condition  of 
attendance.^  This  statement  of  the  law,  however, 
does  not  hold  the  power  to  compel  vaccination,  but 
merely  the  right  to  prohibit  attendance  until  the  regu- 
lation relating  to  vaccination  is  complied  with. 

A  board  of  health  may  make  a  valid  resolution  that 
pupils  not  producing  evidence  of  successful  vaccination 
shall  be  excluded  from  the  public  schools.'*  Such  law 
is  a  valid  exercise  of  the  police  power  of  the  State/ 

1  Smith  V.  Board,  &c.,  182  111.  App.  342. 

2  State  V.  Brown,  112  Minn.  370,  128  N.  W.  294. 

3  Duffield  V.  Williamsport,  162  Pa.  St.  476,  29  Atl.  742 ;  In  re 
Rebenack,  62  Mo.  App.  8  ;  Abeel  v.  Clark,  84  Cal.  226,  24  Pac.  383  ; 
Bissell  V.  Davidson,  65  Conn.  185,  32  Atl.  348 ;  In  re  Walters,  84 
Hun  (N.  Y.)  457,  32  N.  Y.  S.  322. 

4  People  V.  Board,  &c.,  177  111.  572,  52  N.  E.  850 ;  State  v.  Zimmer- 
man, 86  Minn.  353,  90  N.  W.  783 ;  Viemeister  v.  White,  179  N.  Y. 
235,  72  N.  E.  97;  Field  v.  Robinson,  198  Pa.  St.  638,  48  Atl.  873; 
StuU  V.  Reber,  215  Pa.  St.  156,  64  Atl.  419.  But  see,  Osborn  v. 
RusseU,  64  Kan.  507,  68  Pac.  60. 

5  French  v.  Davidson,  143  Cal.  658,  77  Pac.  663 ;  Stull  v.  Reber, 
215  Pa.  St.  156,  64  Atl.  419 ;  State  v.  Board,  &c.,  21  Utah  401,  60 
Pac.  1013.     Contra,  on  ground  that  there  must  be  statutory  author- 

195 


§79]  OF   PUPILS  [Ch.  VI 

and  is  mandatory,  not  merely  directory,  nor  is  it  re- 
pealed by  a  compulsory  education  act.^ 

When  the  statute  requires  vaccination  as  a  condition 
precedent  to  attendance  at  a  public  school  a  school 
committee  has  a  right  to  make  a  rule  that  all  pupils 
not  vaccinated  shall  be  excluded  from  the  public 
schools,  even  though  there  is  no  case  of  smallpox  in 
the  town  and  no  epidemic  threatened. ^ 

An  exception  to  a  statute  requiring  successful  vac- 
cination as  a  condition  precedent  to  admission  into 
the  public  schools  is  to  be  presumed  in  favor  of  a  child 
who  by  either  mental  or  physical  reasons  is  not  a  fit 
subject  for  vaccination.^  But  it  has  been  held  that 
the  decision  of  the  school  committee  of  a  city  or  town, 
acting  in  good  faith  in  the  management  of  the  schools, 
upon  matters  of  fact  directly  affecting  the  good  order 
and  discipline  of  the  schools,  is  final  so  far  as  it  relates 
to  the  rights  of  pupils  to  enjoy  the  privileges  of  the 
school.^  So  where  the  statute  provides  that  "  a  child 
who  has  not  been  vaccinated  shall  not  be  admitted  to 
a  public  school  except  upon  presentation  of  a  certifi- 
cate signed  by  a  regular  practising  physician  that 
he  is  not  a  fit  subject  for  vaccination  "  the  school 

ity :  State  v.  Burdge,  95  Wis.  390,  70  N.  W.  347 ;  Mathews  v.  Board, 
&c.,  127  Mich.  530,  86  N.  W.  1036. 

1  State  Board  of  Health  v.  Board,  &c.,  13  Cal.  App.  514,  110  Pac. 
137. 

2  Bissell  V.  Davison,  65  Conn.  183,  32  Atl.  348. 

3  State  V.  Shorrock,  55  Wash.  208,  104  Pac.  214. 

*  Hammond  v.  Hyde  Park,  195  Mass.  29,  80  N.  E.  650 ;  Watson 
V.  Cambridge,  157  Mass.  561,  32  N.  E.  864;  Hodgkins  v.  Rockport, 
105  Mass.  475 ;  Spiller  v.  Woburn,  12  Allen  (Mass.)  127 ;  Alvord  v. 
Chester,  180  Mass.  20,  61  N.  E.  263. 

196 


Ch.  VI]  VACCINATION  [§79 

committee  consistently  therewith  may  expel  from  school 
during  an  epidemic  of  smallpox  and  until  the  crisis  has 
passed,  a  child  presenting  such  certificate,  who  under 
normal  conditions  would  be  entitled  to  attend  the 
public  school,  provided  such  expulsion  is  done  in  good 
faith.  1 

The  rule  of  a  school  board  requiring  that  an  applicant 
for  admission  shall  show  a  reputable  physician's  certifi- 
cate of  successful  vaccination  as  a  condition  precedent 
to  admission  is  not  unreasonable,^  nor  is  it  unconstitu- 
tional.^ In  the  absence  of  direct  and  specific  legisla- 
tion,* it  has  been  held  that  without  an  immediate, 
present  necessity,  occasioned  by  a  reasonable,  well- 
founded  belief  that  smallpox  is  prevalent  in  the  com- 
munity, or  is  approaching  that  vicinity,  school  directors 
have  no  right  to  make  a  rule  excluding  pupils  from  the 
public  schools  for  failure  to  be  vaccinated.^  And  it 
has  been  held  that  without  authority  of  statute  pupils 
may  not  be  excluded  for  non-vaccination  unless  an 
epidemic  is  actually  pending.^ 

Where  the  school  authorities  make  a  rule  excluding 
from  the  schools  all  children  who  have  not  been  vac- 

»  Hammond  v.  Hyde  Park,  195  Mass.  29,  80  N.  E.  650. 

2  Auten  V.  Board,  &c.,  83  Ark.  431,  104.  S.  W.  130. 

3  State  V.  Board,  &c.,  76  Ohio  St.  297,  81  N.  E.  568. 

4  State  V.  Turney,  31  Ohio  Cir.  Ct.  222. 

5  School  Directors  v.  Breen,  60  111.  App.  201. 

6  State  V.  Turney,  31  Ohio  Cir.  Ct.  222.  May  exclude  when 
epidemic  is  threatened :  Blue  v.  Beach,  155  Ind.  121,  56  N.  E.  89 ; 
Hutchins  v.  Durham,  137  N.  C.  68,  49  S.  E.  46.  May  not  exclude 
unless  epidemic  is  threatened :  Potts  v.  Breen,  167  III.  67,  47  N.  E. 
81;  People  v.  Board,  &c.,  177  111.  572,  52  N.  E.  850;  State  o. 
Burdge,  95  Wis.  390,  70  N.  W.  343. 

197 


§  79]  OF   PUPILS  [Ch.  VI 

cinated,  a  parent  who  refuses  to  allow  his  child  to  be 
vaccinated  and  is  therefore  unable  to  send  the  child 
to  school,  is  not  guilty  of  a  violation  of  a  compulsory 
attendance  law.^  But  it  has  been  held  that  a  com- 
pulsory education  law  may  not  be  avoided  by  refusing 
to  comply  with  a  rule  requiring  vaccination  as  a  con- 
dition precedent  to  attending  a  public  school,  unless 
such  child  is  sent  to  some  other  school.^  And  private 
instruction  at  home  is  insufficient.^ 

Where  the  statute  provides  that  persons  in  charge 
of  the  pubhc  schools  shall  refuse  admission  to  children 
except  upon  certificates  that  they  have  been  success- 
fully vaccinated,  or  have  had  smallpox,  mandamus 
will  not  lie  to  compel  school  directors  to  exclude  a 
child  who  has  not  complied  therewith,  inasmuch  as 
that  duty  is  imposed  upon  the  superintendents,  prin- 
cipals, and  teachers  who  have  charge  of  the  schools.* 

An  order  of  a  school  board,  excluding  from  the 
public  schools  those  pupils  who,  not  having  been 
vaccinated,  refuse  to  be  vaccinated,  does  not  deprive 
them  of  liberty  without  due  process  of  law,  nor  is  such 
an  unreasonable  search  and  seizure.^  And  the  passage 
of  an  ordinance  making  vaccination  a  condition  prece- 
dent to  the  right  of  education  is  not  within  the  general 

1  O'Bannon  v.  Cole,  220  Mo.  697,  119  S.  W.  424;  State  v.  Shor- 
rock,  55  Wash.  208,  104  Pac.  214 ;  State  v.  Turney,  31  Oliio  Cir.  Ct. 
222. 

2  People  V.  Ekerold,  211  N.  Y.  386,  105  N.  E.  670. 

3  State  V.  Connort,  69  Wash.  361,  124  Pac.  910.  But  see.  State 
V.  Peterman,  32  Ind.  App.  665,  70  N.E.  550. 

4  Com.  V.  Rowe,  218  Pa.  St.  168,  67  Atl.  56. 

5  McSween  v.  Board,  &c.,  129  S.  W.  (Tex.)  206. 

198 


Ch.  VI]  REINSTATEMENT  [§  80 

police  powers  of  a  city  authorizing  the  passing  of 
ordinances  for  the  promotion  of  health  and  suppression 
of  disease.^  Nor  is  a  vaccination  rule  invalid  because 
it  does  not  specify  when  it  will  expire.^ 

§  80.   Reinstatement. 

A  pupil  who  is  improperly  excluded  from  the  public 
schools  sustains  an  injury  which  the  law  will  redress. 
But  gross  vulgarity  and  profanity  on  the  part  of  a 
pupil  before  the  school  committee  may  cause  him  to 
forfeit  his  right  to  reinstatement.^ 

Where  application  is  made  for  reinstatement  of  a 
pupil  in  a  school,  the  application  is  usually  made  in 
the  name  and  behalf  of  the  parent  or  guardian."^  And 
where  a  parent's  reasonable  request  that  a  child  be 
excused  from  taking  a  certain  study  is  improperly 
denied,  and  the  child  is  suspended  or  expelled  for  re- 
fusal to  take  such  study,  a  mandamus  will  lie  to  compel 
reinstatement.^ 

A  school  board  cannot  require  a  pupil  to  pay  a  sum 
of  money  as  a  condition  precedent  to  reinstatement 
in  the  public  schools  after  suspension  or  expulsion 
therefrom  for  misconduct.^ 

1  People  V.  Board,  &c.,  234  111.  422,  84  N.  E.  1046. 

2  Zucht  V.  San  Antonio,  &c.,  170  S.  W.  (Tex.)  840. 

'  Board,  &c.,  v.  Helston,  32  111.  App.  300 ;  State  v.  District  Board, 
&c.,  135  Wis.  619,  116  N.  W.  232 ;  Cross  v.  Walton,  &c.,  129  Ky.  35, 
llOS.  W.  346. 

4  Rulison  V.  Post,  79  111.  567 ;  State  v.  Board,  &c.,  63  Wis.  234, 
23  N.  W.  102 ;  Holraan  v.  Trustees,  &c.,  77  Mich.  605,  43  N.  W. 
996 ;  Binde  v.  Klinge,  30  Mo.  App.  285 ;  Trustees  v.  People,  87  III. 
303. 

5  State  V.  Ferguson,  95  Neb.  63,  144  N.  W.  1039. 

6  State  V.  District  Board,  &c.,  135  Wis.  619,  116  N.  W.  232. 

199 


§81]  OF   PUPILS  [Cn.   VI 

An  order  expelling  a  pupil  must  be  from  an  existing 
school,  and  inasmuch  as  the  pupil's  relationship  with 
the  school  is  severed  when  the  school  year  has  closed 
and  vacation  has  begun  there  exists  on  the  part  of  the 
school  authorities  no  right,  for  want  of  jurisdiction,  to 
expel  a  pupil  after  the  termination  of  the  school  year 
and  during  the  vacation  season.^ 

§  81.   Diplomas. 

A  graduate  is  one  who  has  honorably  passed  through 
the  prescribed  course  of  study  and  received  a  certificate 
or  diploma  to  that  effect.  Mere  permission  to  one  to 
take  part  in  the  ceremonials  of  graduation  with  the 
understanding  that  it  was  to  save  him  and  his  family 
from  humiliation,  does  not  entitle  him  to  a  cer- 
tificate of  graduation.  And  it  is  the  certificate,  not 
the  taking  part  in  a  public  performance,  which  at- 
tests the  fact  that  he  has  passed  the  prescribed  course 
of  study  and  is  otherwise  qualified  according  to  the 
rules  of  the  school.  If  the  school  board  with  knowl- 
edge that  one  has  not  passed  the  prescribed  course, 
should,  out  of  favoritism,  grant  him  a  certificate, 
it  might  be  canceled.  So  also  if  issued  through 
mistake. 

A  pupil  might  be  graduated  without  taking  part  in 
any  ceremonies,  but  he  cannot  be  a  graduate,  no 
matter  what  the  ceremonies,  unless  he  passed  his 
examinations  and  received  his  diploma.  The  granting 
of  a  certificate  is  the  one  act  in  the  ceremonies  of 
graduation  which  has  a  legal  effect.     The  symbolic 

^  Decision  of  Supt.  of  Iowa,  March  18,  1899. 
200 


Ch.  VI]  SEPARATE  SCHOOLS  [§  82 

delivery  of  a  diploma  by  the  presentation  of  a  dummy 
is  of  no  legal  effect.^ 

But  if  a  student's  record  has  been  determined  to  be 
satisfactory,  and  the  duty  of  giving  a  certificate  has 
become  merely  ministerial,  he  is  entitled  to  a  mandamus 
to  compel  the  school  authorities  to  graduate  him.^ 
The  determination  of  the  pupil's  record,  however, 
rests  in  the  discretion  of  the  school  board,  and  a  man- 
damus will  not  lie  to  control  the  exercise  of  such  dis- 
cretionary power.^ 

The  graduating  exercises  of  a  school  are  not  a  part 
of  the  course  of  study  therein,  and  a  school  board 
has  no  authority  to  refuse  to  issue  a  diploma  to  a 
pupil,  who  has  properly  and  honorably  completed 
the  prescribed  course  of  study,  because  he  fails  to 
prepare  a  valedictory  address  for  the  purpose  of  gradua- 
tion exercises.^ 

§  82.   Separate  Schools. 

The  Fourteenth  Amendment  of  the  Federal  Constitu- 
tion provides  that  no  State  shall  make  or  enforce  any 
law  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the 
laws,  and  this  Amendment  has  a  direct  bearing  on  the 
power   of   school    authorities   in    their    treatment   of 

^  Sweitzer  v.  Fisher,  —  Iowa,  — ,  154  N.  W.  465.  See  also,  Joliet 
V.  Werner,  166  111.  34,  46  N.  E.  780. 

2  Keller  v.  Hewitt,  109  Cal.  146,  41  Pac.  871 ;  State  v.  Lincoln 
Medical  CoUege,  81  Neb.  533,  116  N.  W.  294. 

3  People  V.  N.  Y.  Law  School,  68  Hun  (N.  Y.)  118,  22  N.  Y.  S. 
663 ;  Niles  v.  Orange  Training  School,  63  N.  J.  L.  528,  42  Atl.  846. 

4  Decision  of  State  Com'r  of  N.  J.,  May  27,  1912. 

201 


§  82]  OF   PUPILS  [Ch.  VI 

colored  pupils.  This  constitutional  provision  has  been 
held  to  give  the  colored  people  rights  of  equality  with 
those  of  the  white  race,  but  does  not  guarantee  to  the 
colored  race  a  community  of  rights.^  Therefore,  a 
State  has  the  right  to  establish  and  maintain  separate 
schools  for  colored  pupils,  provided  such  schools  are 
on  a  plane  of  equality  with  those  maintained  for 
pupils  of  the  white  race,^  although  it  would  be  a  denial 
to  them  of  the  equal  protection  of  the  laws  guaranteed 
by  the  Fourteenth  Amendment  if  they  were  excluded 
entirely  from  the  public  schools.^ 

The  constitutionality  of  laws  providing  for  separate 
schools  for  colored  pupils  does  not  arise  under  the 
"  privileges  or  immunities  "  clause  of  the  Constitution 
of  the  United  States,  but  does  arise  under  the  clause 
of  the  Fourteenth  Amendment  prohibiting  any  State 
from  the  denial  "  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws."  Therefore,  if  the 
legislature  of  a  State  chooses  to  provide  separate  schools 
for  colored  pupils,  it  may  do  so  provided  such  colored 
schools  afford  advantages  in  all  respects  substantially 
equal   to   those  furnished  by   the   schools  for  white 

1  Younger  v.  Judah,  111  Mo.  303,  19  S.  W.  1109;  People  v. 
Gallagher,  93  N.  Y.  438. 

2  U.  S.  V.  Buntin,  10  Fed.  730 ;  Union  County  v.  Robinson,  27 
Ark.  116 ;  Ward  v.  Flood,  48  Cal.  56 ;  Cory  v.  Carter,  48  Ind.  327 ; 
People  V.  Board,  &c.,  18  Mich.  400 ;  Chrisman  v.  Brookhaven,  70 
Miss.  477,  12  So.  458;  Younger  v.  Judah,  111  Mo.  303,  19  S.  W. 
1109 ;  State  v.  Duffy,  7  Nev.  342 ;  People  v.  Easton,  13  Abb.  Pr. 
N.  S.  (N.  Y.)  159;  State  v.  McCann,  21  Ohio  St.  198. 

3  Claybrook  v.  Owensboro,  16  Fed.  297 ;  Ward  v.  Flood,  48  Cal. 
50 ;  People  v.  Board,  &c.,  18  Mich.  400 ;  State  v.  Duggan,  15  R.  I. 
403,  6  Atl.  787. 

202 


Ch.  VI]  SEPARATE  SCHOOLS  [§  82 

pupils.^  Separate  schools  are  not  unconstitutional  for 
lack  of  uniformity,-  but  a  discrimination  in  the  length 
of  the  school  year  between  white  and  colored  schools 
is  illegal  as  against  public  policy.^ 

Where  the  constitution  provides  that  in  the  estab- 
lishment of  separate  schools  there  shall  be  no  dis- 
crimination or  prejudice  of  either  race,  a  statute  is 
unconstitutional  if  it  provides  for  a  uniform  tax  for  the 
purpose  of  erecting  a  school  building  exclusively  for  white 
pupils.^  And  a  legislative  act  authorizing  a  county  to 
establish  an  agricultural  high  school  for  the  instruction 
of  its  white  youth,  such  high  school  to  be  supported  by 
a  tax  on  all  taxable  property  therein,  is  unconstitutional 
in  that  its  necessary  effect  is  to  abridge  the  priv- 
ileges or  immunities  of  the  colored  taxpayers  in  such 
county,  or  deny  them  equal  protection  of  the  laws.^ 

In  the  absence  of  statutory  authority,  a  child  by 
reason  of  its  color  may  not  be  excluded  from  any 
public  school.^  And  an  act  to  entirely  exclude  negroes 
from  the  public  schools  is  unconstitutional/  In  the 
absence  of  statute  so  permitting,  a  school  board  cannot 
establish  separate  schools  for  Indian  children  and 
compel  them  to  attend  such  separate  schools.^ 

1  Bertonneau  v.  Directors,  3  Woods  (U.  S.  C.  C.)  177. 

2  Reynolds  v.  Board,  &c.,  66  Kan.  672,  72  Pac.  274 ;  People  v. 
School  Board,  161  N.  Y.  598,  56  N.  E.  81. 

3  Williams  v.  Board,  &c.,  45  W.  Va.  199,  31  S.  E.  985. 

4  Williams  v.  Bradford,  158  N.  C.  36,  73  S.  E.  154. 
s  McFarland  v.  Goins,  96  Miss.  67,  50  So.  493. 

6  Rowles  V.  Board,  &c.,  76  Kan.  361,  91  Pac.  88. 

7  State  V.  Duffy,  7  Nev.  342. 

8  Crawford  v.  District  School  Board,  &c.,  68  Oreg.  388,  137  Pac. 
217. 

203 


§82]  OF   PUPILS  [Ch.  VI 

The  authority  to  estabUsh  separate  schools  for  colored 
pupils  does  not  give  school  directors  the  power  to  es- 
tablish and  maintain  a  separate  school  solely  to  instruct 
three  or  four  colored  children  in  the  district  when 
there  are  accommodations  for  them  in  the  schoolhouse 
with  the  other  pupils  of  the  district.  And  such  pro- 
ceeding may  be  enjoined  at  the  suit  of  any  taxpayer 
of  the  district  to  prevent  such  misuse  of  the  public 
funds.  ^ 

Separate  colored  schools  can  be  authorized  only  by 
the  State,  and  in  absence  of  legislative  enactment  a 
city  board  of  education  has  no  right  to  establish  such 
separate  schools,  and  exclude  colored  children  from 
other  schools.^  And  the  power  to  establish  separate 
schools  as  given  to  school  officers  by  statute,  cannot  be 
controlled  by  the  courts.^ 

If  a  constitutional  provision  requires  the  legislature 
to  establish  and  maintain  a  uniform  system  of  free 
public  schools  it  is  still  legal  to  provide  for  the  estab- 
lishment outside  of  that  system  of  a  school  exclusively 
for  white  children,  and  the  issuance  of  bonds  by  the 
town  in  which  it  is  located  for  the  payment  therefor 
is  valid. ^ 

Where  the  statute  prohibits  the  teaching  of  whites 
and  negroes  in  the  same  school,  such  law  is  constitu- 
tional as  applied  to  a  corporation  as  to  which  the 
State  has  reserved  the  power  to  alter,  amend  or  repeal 

1  Chase  v.  Stephenson,  71  111.  383. 

2  People  V.  City  of  Quincy,  101  111.  308. 

3  State  V.  Gray,  93  Ind.  303. 

*  Chrisman  v.  Brookhaven,  70  Miss.  477,  12  So.  458. 

204 


Ch.  VI]  SEPARATE  SCHOOLS  [§  82 

its  charter,  and  does  not  violate  the  constitution  in 
denying  due  process  of  law,  nor  in  any  other  way.^ 

Wliere  the  statute  provides  that  no  child  shall  be 
excluded  from  any  public  school  on  account  of  religion, 
nationality  or  color,  the  exclusion  of  a  mulatto  child 
from  a  school  established  for  white  children  is  illegal 
even  though  separate  schools  are  provided  for  colored 
children.^  And  an  illegal  rule  to  exclude  colored  chil- 
dren, even  where  separate  colored  schools  are  estab- 
lished, cannot  be  enforced.^ 

Under  the  Constitution  and  laws  of  Iowa  school 
authorities  have  no  right  to  deny  a  pupil  admission 
to  any  school  for  reason  of  its  color.^  And  in  that 
State  a  colored  pupil  cannot  be  compelled  to  attend 
a  separate  school  for  colored  children ;  ^  nor  can  such 
pupils  be  excluded  from  any  public  schools  in  Kansas 
or  Michigan.^ 

Separate  schools  were  abolished  in  Pennsylvania  by 
the  Act  of  June  8,  1881,  so  that  under  that  act  the 
school  directors  have  no  authority  to  exclude  a  colored 
child  from  a  common  school  established  by  them  ex- 
clusively for  white  children,  and  assign  him  to  a  branch 
school  for  colored  children  established  by  them  in  a 
nearby  building.^ 

1  Berea  College  v.  Com.,  211  U.  S.  45,  53  L.  ed.  81,  29  S.  Ct.  33. 

2  Pierce  v.  Union,  &c.,  46  N.  J.  L.  76 ;  People  v.  Board,  &c.,  127 
111.  613,  21  N.  E.  187 ;  Dove  v.  Independent  School,  &c.,  41  Iowa  689. 

3  Wysinger  v.  Cruikshank,  82  Cal.  588,  23  Pac.  54. 
^  Clark  V.  Board,  &c.,  24  Iowa  266. 

5  Smith  V.  School  District,  &c.,  40  Iowa  518. 
®  Ottawa,  &c.,  V.  Tinnon,  26  Kan.  1 ;   Knox  v.  Board,  &c.,  45 
Kan.  152,  25  Pac.  616 ;  People  v.  Board,  &c.,  18  Mich.  400. 
"^  Kaine  v.  Com.,  101  Pa.  St.  490. 

205 


§  82]  OF   PUPILS  [Ch.  VI 

And  it  is  no  objection  that  the  estabhshment  and 
maintenance  of  separate  schools  for  colored  children 
requires  them  to  go  further  to  reach  the  school  than 
if  they  were  to  go  to  the  school  established  for  white 
children.^  The  power  of  general  superintendence  vests 
a  plenary  authority  in  the  school  directors  to  arrange, 
classify  and  distribute  pupils  in  such  a  manner  as  they 
think  best,  provided  such  rules  are  reasonable,  in  a 
manner  which  they  think  best  adapted  to  their  general 
proficiency  and  welfare.  If  it  is  thought  expedient, 
they  may  assign  a  colored  child  to  a  separate  colored 
school,  even  though  such  school  be  a  greater  distance 
from  its  home,  provided  the  greater  distance  is  not 
unreasonable.  ^ 

In  establishing  a  separate  school  for  colored  children 
it  is  not  objectionable  that  they  are  compelled  to  go 
a  greater  distance  than  white  children  similarly  situ- 
ated, or  that  they  are  required  to  cross  a  railroad 
track. ^  But  where  the  location  of  a  separate  school 
for  colored  children  is  such  that  access  to  it  is  beset 
with  such  dangers  to  life  and  limb  that  children  ought 
not  to  be  required  to  attend  it,  there  is  a  denial  to 
such  children  of  equal  educational  facilities.^ 

If  a  separate  school  for  colored  pupils  is  so  remote 
that  to  attend  compels  a  pupil  to  go  an  unreasonable 
and  oppressive  distance,  then  exclusion  from  a  nearer 

1  Ward  V.  Flood,  48  Cal.  52 ;  Lehew  v.  Brummell,  103  Mo.  546, 
15  S.  W.  765 ;  People  v.  Gallagher,  93  N.  Y.  451. 

2  Roberts  v.  Boston,  5  Gush.  (Mass.)  198. 

3  Dameron  v.  Bayless,  14  Ariz.  180,  126  Pac.  273. 

4  Williams  v.  Board,  &c.,  79  Kan.  202,  99  Pac.  216. 

206 


Ch.  VI]  SEPARATE  SCHOOLS  [§  82 

school  is  unlawful.^  But  it  has  been  held  that  where 
a  city  maintains  separate  schools,  according  to  law, 
for  white  and  colored  children,  and  owing  to  the  smaller 
number  of  colored  children  their  schools  are  fewer, 
the  fact  that  some  of  the  colored  children  have  to 
walk  a  distance  of  four  miles  to  reach  a  colored  school 
passing  on  the  way  schools  of  the  same  grade  for 
white  children,  does  not  make  the  distance  unreason- 
able. ^ 

In  deciding  whether  a  pupil  is  white  or  colored,  evi- 
dence that  such  pupil  attended  a  white  school  in  the 
State  in  which  he  formerly  lived,  is  admissible  if  that 
State  had  a  separate  school  law.  So  also  is  the  fact 
that  such  pupil  was  generally  regarded  as  a  white 
child,  as  well  as  the  extent  of  his  association  with 
either  the  white  or  colored  race. 

A  child  is  colored,  although  born  of  a  white  mother 
if  the  father  is  half  white  and  half  negro.^  But  the 
children  of  a  white  mother  and  a  father  three-fourths 
white  are  to  be  classed  as  white.'*  A  child  having 
one-sixteenth  negro  blood  is  a  colored  child  and  as 
such  may  be  excluded  from  a  school  established  ex- 
clusively for  white  children.^  And  a  child  having  one- 
eighth  to  one-sixteenth  negro  blood  is  a  colored  child, 
although  his  appearance  is  entirely  that  of  the  Cau- 
casian race.^    Under  statute  it  has  been   held   that 

1  U.  S.  V.  Buntin,  10  Fed.  730. 

2  State  V.  Board,  &c.,  7  Ohio  Dec.  129. 

3  Hare  v.  Board,  &c.,  113  N.  C.  9,  18  S.  E.  55. 

*  Williams  v.  Directors,  &c.,  Wright  (Ohio)  579. 

5  Mullins  V.  Belcher,  142  Ky.  673,  134  S.  W.  1151. 

6  Wall  V.  Oyster,  36  D.  C.  App.  50. 

207 


§  82]  OF  PUPILS  [Ch.  VI 

"  colored  ",  as  applied  to  separate  schools,  means  negro 
blood  of  even  the  smallest  degree.^ 

The  question  of  whether  a  child  is  white  or  colored 
is  to  be  determined  by  the  board  of  school  trustees 
with  the  right  of  appeal  to  the  County  Superintendent 
of  schools,^  where  such  right  of  appeal  is  given  by 
statute. 

Under  laws  providing  for  the  establishing  of  sepa- 
rate schools  for  negroes  and  whites,  taxation  must  also 
be  laid  on  these  lines,  and  negroes  cannot  be  taxed  to 
support  white  schools,  nor  can  whites  be  taxed  to 
support  colored  schools.  Therefore,  it  is  not  improper 
to  deny  colored  voters  the  right  to  vote  on  the  issuance 
of  bonds  to  establish  a  white  school.^ 

A  school  committee  need  not  comply  with  an  order 
of  the  board  of  education  to  admit  a  colored  pupil  to  a 
school  established  for  white  children,  and  from  which 
the  law  excludes  negroes.^ 

Where  the  statute  provides  that  the  school  board 
shall  in  each  year  take  an  enumeration  of  the  persons 
of  school  age  within  a  district,  and  that  when  such 
enumeration  shows  a  specified  number  of  colored 
children  therein,  shall  establish  separate  schools  for 
such  colored  children,  mandamus  to  compel  the  es- 
tablishment of  such  schools  will  be  awarded.^  Man- 
damus is  the  proper  remedy  to  enforce  admission  to  a 

1  Johnson  v.  Board,  &c.,  166  N.  C.  468,  82  S.  E.  832. 

2  Eubank  v.  Boughton,  98  Va.  499,  36  S.  E.  529. 

3  Munfordville,  &c.,  v.  Board,  &c.,  155  Ky.  382,  159  S.  W. 
954. 

4  McMillan  v.  School  Committee,  107  N.  C.  609,  12  S.  E.  330. 
8  Morehead  v.  Cartwright,  122  Mo.  App.  257,  99  S.  W.  48. 

208 


Ch.  VI]  transportation  [§  83 

school,^  but  mandamus  will  be  refused  if  the  complaint 
to  compel  a  township  trustee  to  establish  a  separate 
school  for  colored  children  does  not  show  that  there 
is  a  suitable  number  of  such  children  to  render  such 
organization  practicable.^ 

§  83.  Transportation. 

The  failure  of  the  board  of  education  to  provide 
transportation  for  children  living  remote  from  the 
schoolhouse  is  not  a  failure  to  provide  suitable  school 
facilities  and  accommodations  for  all  children  residing 
in  the  district  desiring  to  attend  the  public  schools 
therein ;  especially  when  the  furnishing  of  transporta- 
tion to  children  living  remote  from  schoolhouses  is 
permissive  to  the  board  of  education  and  not  manda- 
tory upon  them.^  The  duty  to  provide  school  facilities 
and  accommodations,  does  not  imply  the  duty  of  provid- 
ing free  transportation  of  pupils  living  remote  from 
the  schoolhouse.^  And  in  absence  of  a  statute  so 
pro\dding,  school  directors  have  no  power  to  hire  the 
transportation  of  pupils.^ 

Where  the  statute  provides  that  the  directors  may 
use  part  of  the  school  money  in  the  transportation  of 
scholars  to  and  from  school,  it  rests  in  the  discretion 
of  the  board  as  to  whether  it  shall  be  used,  and  unless 

1  Clark  V.  Board,  &c.,  24  Iowa  266 ;  People  v.  Board,  &c.,  18  Mich. 
400;  State  v.  Duffy,  7  Nev.  342 ;  Ward  v.  Flood,  48  Cal.  36 ;  Cory 
V.  Carter,  48  Ind.  327. 

2  State  V.  Grubb,  85  Ind.  213. 

3  Board,  &c.,  v.  Atwood,  74  N.  J.  L.  638,  65  Atl.  999. 
^  Ibid. 

5  Mills  V.  School  Directors,  &c.,  154  111.  App.  119. 

209 


§  83]  OF   PUPILS  [Ch.  VI 

there  is  an  intentional  discrimination  mandamus  will 
not  lie  to  compel  such  transportation.^  And  where  the 
statute  authorizes  the  school  board  to  arrange  for 
transportation  of  school  children  in  certain  cases,  and 
the  necessity  for  which  rests  in  their  discretion,  the 
remedy  for  failure  to  provide  such  transportation  is 
by  appeal  to  the  County  Superintendent,  and  mandamus 
will  not  lie.^ 

Where  compulsory  attendance  at  a  public  school, 
and  conveyance  for  pupils  living  beyond  a  certain 
distance  from  the  schoolhouse  thereto,  are  both  pro- 
vided for  by  statute,  the  parent  or  guardian  of  a  pupil 
living  beyond  such  specified  distance  is  not  amenable 
to  the  compulsory  attendance  law  when  the  convey- 
ance is  not  provided.^ 

If  no  estimate  of  expenses  for  transportation  of 
pupils  is  included  in  the  tax  levy,  and  there  are  conse- 
quently no  funds  on  hand  for  that  purpose,  it  is  a  good 
defense  on  the  part  of  a  school  trustee  against  whom 
proceedings  are  brought  to  compel  such  transporta- 
tion.^ And  if  a  school  trustee,  with  the  concurrence 
of  an  advisory  board,  levies  a  tax  to  provide  free 
transportation  of  a  pupil,  his  successor  in  office  is  not 
obliged  to  furnish  such  free  transportation  unless  the 
statute  places  upon  him  the  legal  duty  to  do  so.^ 

In  furnishing  free  transportation  under  a  statute 


1  Carey  v.  Thompson,  66  Vt.  665,  30  Atl.  5. 

2  Queeny  v.  Higgins,  136  Iowa  573,  114  N.  W.  51. 

3  State  V.  Hall,  74  N.  H.  61,  64  Atl.  1102. 

4  Dunten  v.  State,  172  Ind.  59,  87  N.  E.  733. 

5  State  V.  Jackson,  168  Ind.  384,  81  N.  E.  62. 

210 


Ch.  VI]  TRANSPORTATION  [§  83 

requiring  it  for  all  pupils  living  more  than  two  and 
one-half  miles  from  a  schoolhouse,  a  requirement  that 
boys  from  ten  to  nineteen  years  of  age  cross  a  frozen 
river  and  walk  a  distance  of  one-third  of  a  mile  to 
meet  a  conveyance  is  not  an  abuse  of  the  discretion 
vested  in  a  school  board. ^ 

The  right  of  transportation  of  a  pupil  to  a  public 
school  is  a  public  right, ^  and  as  such  gives  no  right  of 
action  against  a  municipality  infringing  it,^  in  absence 
of  a  statute  creating  liability.  Therefore,  at  common 
law,  a  school  district  is  not  liable  for  injuries  to  a  pupil 
which  are  resultant  from  improper  means  of  transpor- 
tation negligently  provided  for  his  accommodation  at 
the  expense  of  the  public.^ 

A  statute  requiring  railway  companies  to  carry 
pupils  of  the  public  schools  to  and  from  schools  at 
rates  not  exceeding  half  the  regular  fare  charged  for 
the  transportation  of  other  passengers  between  the 
same  points,  is  constitutional,  it  being  a  police  regu- 
lation in  the  interest  of  education.^  But  if  it  plainly 
appeared  that  the  enforcement  of  such  law  would 
cause  expense  to  street  railway  companies,  which 
they  would  have  to  bear,  or  put  it  upon  other  classes 
of  passengers  in  the  form  of  increased  fares  to  make 
good  the  loss  from  carrying  school  children  at  half 
rates,  there  would  be  a  taking  of  property  without  due 

1  State  V.  Mostad,  28  N.  D.  244,  148  N.  W.  831. 

2  Rhobidas  v.  Concord,  70  N.  H.  90,  47  Atl.  82. 

3  Harris  v.  Salem,  72  N.  H.  424,  57  Atl.  332. 
*  Ibid. 

5  Com.  V.  Interstate,  &c.  Ry.,  187  Mass.  436,  73  N.  E.  530. 

211 


§  83]  OF   PUPILS  [Ch.  VI 

process  of  law,  through  unconstitutional  discrimination. 
In  estimating  the  cost  of  carrying  such  school  children, 
the  legislature  may  properly  consider  the  size  of  such 
children,  and  the  hours  at  which  they  travel,  as  well 
as  the  probable  increase  in  travel  on  the  cars  by  reason 
of  such  reduced  rates. ^  And  a  condition  in  a  grant  of 
franchise  requiring  a  street  railroad  company  to  carry 
pupils  in  any  school  at  reduced  rates,  was  held  reason- 
able and  valid,  and  was  construed  to  include  students 
attending  a  business  college,  also  students  attending  a 
regular  college.^ 

» Com.  V.  Interstate,  &c.  Ry.,  187  Mass.  436,  73  N.  E.  530. 
2  Northrop  v.  Richmond,  105  Va.  335,  53  S.  E.  962. 


212 


CHAPTER  VII 
RULES  AND  REGULATIONS 

§  84.   Power  of  Adoption. 

School  boards  and  other  educational  authorities  of  the 
State  have  the  power  to  adopt  appropriate  rules  and 
regulations  for  the  government  of  the  schools  under 
their  control,  and  when  so  adopted,  such  rules  and 
regulations  are  analogous  to  by-laws  and  ordinances, 
and  are  tested  by  the  same  general  principles.^  And 
the  general  power  to  take  charge  of  the  educational 
affairs  of  a  district,  or  prescribed  territory,  includes  the 
power  to  make  all  reasonable  rules  and  regulations  for 
the  discipline,  government  and  management  of  the 
schools  within  the  district  or  territory.^ 

Although  the  trustees  of  public  schools  have  statutory 
authority  to  direct  what  branches  should  be  taught,  and 
to  adopt  and  enforce  all  necessary  rules  and  regulations 
for  the  management  and  government  of  schools,  it  has 
been  held  that  where  a  candidate  for  admission  passed 
a  satisfactory  examination  in  everything  but  grammar, 
there  was  no  right  to  refuse  him  admission  on  that  ac- 

»  State  V.  Webber,  108  Ind.  31,  8  N.  E.  708 ;  Fertich  v.  Michener, 
111  Ind.  472,  11  N.  E.  605. 

2  State  V.  Burton,  45  Wis.  150 ;  Ferriter  v.  Tyler,  48  Vt.  444 ; 
Hodgkins  v.  Rockport,  105  Mass.  475 ;  People  v.  Medical  Soc,  24 
Barb.  (N.  Y.)  570;  Thompson  v.  Beaver,  63  111.  353. 

213 


§  85]  RULES   AND   REGULATIONS  [Ch.  VII 

count,  and  that  mandamus  would  lie  to  compel  his 
admission  to  study  the  other  branches.^ 

§  85.   Manner  of  Establishing. 

The  power  to  make  rules  does  not  imply  that  all  the 
rules,  orders  and  regulations  for  the  discipline,  govern- 
ment and  management  of  the  schools  shall  be  made  a 
matter  of  record  by  the  school  board,  or  that  every  act, 
order  or  direction  affecting  the  conduct  of  such  schools 
shall  be  authorized  or  confirmed  by  a  formal  vote. 
Nor  is  it  necessary  that  any  prohibitive  rule  exist  in 
order  to  justify  punishment  for  flagrant  misconduct. 

No  system  of  rules  however  carefully  prepared  can 
provide  for  every  possible  emergency  or  meet  every 
requirement.  In  consequence,  much  must  necessarily 
be  left  to  the  individual  members  of  the  school  boards, 
and  to  the  superintendents  of,  and  the  teachers  in  the 
several  schools. ^  It  follows  that  any  reasonable  rule 
adopted  by  a  superintendent,  or  a  teacher  merely, 
not  inconsistent  with  some  statute  or  some  other  rule 
prescribed  by  higher  authority,  is  binding  upon  the 
pupils.^  And  a  teacher  may  take  a  pistol  from  a  pupil 
who  has  carried  it  to  school,  using  all  necessary  force 
in  doing  so.*  A  pupil  may  also  be  punished  although 
no  rule  has  been  promulgated.^ 

1  Lake  View,  &c.,  v.  People,  87  111.  303. 

2  Russell  V.  Lynnfield,  116  Mass.  365. 

3  Fertich  v.  Michener,  1 1 1  Ind.  472, 1 1  N.  E.  605.  In  the  absence 
of  rules  prescribed  by  the  school  board  or  other  proper  authority 
the  teacher  may  make  all  necessary  and  proper  rules  for  the  regula- 
tion of  the  school ;  Sheehan  v.  Sturges,  53  Conn.  481,  2  Atl.  841. 

4  Metcalf  V.  State,  21  Tex.  App.  174,  17  S.  W.  142. 

fi  State  V.  District  Board,  &c.,  135  Wis.  619,  116  N.  W.  232. 

214 


Ch.  VII]      REASONABLENESS  AND  VALIDITY  [§  86 

§  86.   Reasonableness  and  Validity. 

Whether  a  by-law  or  other  kindred  regulation  is 
reasonable  or  valid,  is  a  question  of  law  for  the  decision 
of  the  court,  and  hence  not  a  question  of  fact  for  the 
determination  of  the  jury.^ 

■  No  rule,  however  reasonable  it  may  be  in  its  general 
application,  ought  to  be  enforced  when  to  enforce  it 
will  inflict  actual  and  unnecessary  suffering  upon  a 
pupil.  Rules  are  often  adopted  inflicting  a  penalty 
for  absence  from  school  without  proper  or  some  pre- 
scribed leave,  and  such  rules  have  always  been  held 
to  be  reasonable  and  sometimes  necessary  school  regu- 
lations, and  yet  such  rules  could  not  be  lawfully  en- 
forced against  a  pupil  detained  from  school  by  sick- 
ness, a  violent  storm,  a  death  in  the  family,  or  any 
physical  disability  to  attend.^  A  school  regulation 
must  therefore  be  not  only  reasonable  in  itself,  but 
its  enforcement  must  also  be  reasonable  in  the  light 
of  existing  circumstances. 

In  prescribing  a  salute  to  the  flag  as  a  ceremony  at 
the  opening  exercises  of  a  school  there  exists  on  the 
part  of  a  board  of  education  no  authority  to  make  a 
rule  that  a  pledge  be  repeated  by  the  pupils  to  the 
effect,  "  I  pledge  allegiance  to  my  flag,  and  to  the 
Republic  for  which  it  stands,  one  nation  indivisible, 
with  liberty  and  justice  to  all",  inasmuch  as  such 
pledge  is  one  of  allegiance  to  the  United  States  and 
cannot   be   legally  enforced   against   the   children   of 

1  State  V.  White,  82  Ind.  278 ;  Fertich  v.  Michener,  111  Ind.  472, 
11  N.  E.  605. 

2  Fertich  v.  Michener,  supra  cit. 

215 


§  87]  RULES  AND   REGULATIONS  [Cii.  VII 

those  who  are  not  citizens  of  the  United  States  but 
who  have  a  right  to  attend  the  pubhc  schools,  and  a 
refusal  to  repeat  such  pledge  is  no  ground  for  suspension.^ 

The  board  of  education  has  power  to  make,  estab- 
lish and  enforce  all  necessary  and  proper  rules  and 
regulations  not  contrary  to  law,  and  if  a  teacher  obeys 
the  command  of  the  board  in  enforcing  a  rule  that  is 
contrary  to  the  law  of  the  State,  it  cannot  be  justified.^ 
But  a  teacher  would  not  be  responsible  for  a  mere 
mistake  of  judgment.  To  make  a  teacher  liable  it 
must  be  shown  that  the  act  complained  of  was  wanton, 
willful  or  malicious.^ 

If  a  pupil  purposely  runs  against  another  pupil 
and  injures  him  so  that  it  is  necessary  for  the  injured 
pupil  to  go  home,  it  is  right  and  proper  upon  the  part 
of  the  teacher  to  require  the  pupil  causing  the  injury 
to  accompany  the  injured  pupil  to  his  home,  even  if 
such  requirement  is  intended  as  a  punishment.  And 
expulsion  of  the  pupil  for  failure  to  comply  with  this 
requirement  will  not  be  considered  good  ground  for 
the  issuance  of  a  writ  of  mandamus  to  require  his 
reinstatement.^ 

§  87.    Carrying  Fuel. 

Much  discretion  must  necessarily  be  left  to  school 
boards  as  to  the  nature  of  rules  prescribed,  yet  it  can- 

1  Decision  of  State  Com'r  of  N.  J.,  Nov.  8,  1912. 

2  Tape  V.  Hurley,  66  Cal.  473, 6  Pac.  129 ;  Wysinger  v.  Cruilcshank, 
82  Cal.  588,  23  Pac.  54. 

3  Elmore  v.  Overton,  104  Ind.  548,  4  N.  E.  197 ;  McCormick  v. 
Burt,  95  111.  263 ;  Dritt  v.  Snodgrass,  66  Mo.  286. 

*  Beaty  v.  Randall,  79  Mo.  App.  226. 

216 


Ch.  VII]  RHETORICAL  EXERCISES  [§  88 

not  fairly  be  claimed  that  the  boards  are  uncontrolled 
in  the  exercise  of  their  discretion  and  judgment  upon 
the  subject.  The  rules  and  regulations  made  must 
be  reasonable  and  proper,  and  needful  for  the  govern- 
ment, good  order,  and  efficiency  of  the  school,  such 
as  will  best  advance  the  pupils  in  their  studies,  tend  to 
their  education  and  mental  improvement,  and  promote 
their  interest  and  welfare. 

But  the  rules  and  regulations  must  relate  to  these 
objects.  The  boards  are  not  at  liberty  to  adopt  rules 
relating  to  other  subjects  according  to  their  humor  or 
fancy,  and  make  a  disobedience  of  such  a  rule  by  a 
pupil  cause  for  his  suspension  or  expulsion.  There- 
fore it  was  held  that  a  rule  or  regulation  requiring  a 
pupil  to  bring  up  wood  for  use  in  the  school  room 
was  one  which  the  board  had  no  right  to  make  and 
enforce.'^ 

§  88.   Rhetorical  Exercises  and  Dialogues. 

Where  a  rule  adopted  by  the  school  authorities 
required  that  a  pupil  at  a  stated  time  should  be  pre- 
pared with  a  rhetorical  exercise,  and  that  unless 
he  be  excused  on  account  of  sickness  or  other  reason- 
able cause  should  present  such  exercise  under  penalty 
of  suspension,  it  was  held  that  such  a  rule  was  a  reason- 
able one.  Neither  the  teacher  enforcing  such  rule 
nor  the  board  of  education  is  liable  in  damages  there- 
for.2 

A  pupil  may  be  suspended  for  willful  refusal  to  take 

1  State  V.  Board,  &c.,  63  Wis.  234,  23  N.  W.  102. 

2  Sewell  V.  Board,  &c.,  29  Ohio  St.  89. 

217 


§  89]  RULES  AND   REGULATIONS  [Ch.  VII 

part  in  a  dialogue  in  annual  commencement  exercises, 
when  such  refusal  amounts  to  insubordination.^ 

§  89.    Compositions  and  Debates. 

The  authorities  of  a  public  school  have  full  power 
to  make  it  a  part  of  the  school  course  to  write  composi- 
tions, and  enter  into  debates,  and  to  make  rules  requir- 
ing that  all  pupils  shall  participate  therein.  And  the 
matter  of  selecting  topics  for  such  compositions  and 
debates  rests  entirely  with  the  school  authorities  who 
have  the  power  of  determining  whether  the  topic 
selected  by  them  is  suitable  to  the  attainments  and 
age  of  the  pupil,  and  the  courts  will  not  interfere  when 
they  have  exercised  their  discretion.^ 

If  a  pupil  is  assigned  a  topic  on  which  to  prepare  a 
composition,  and  does  not  do  so,  but  reads  one  pre- 
pared by  his  father,  and  which  contains  matter  dis- 
respectful to  the  teacher,  two  offenses  are  committed ; 
and  the  school  authorities  have  the  right  to  condone 
the  offense  of  reading  such  improper  composition  pre- 
pared by  the  father,  and  still  punish  the  pupil  for 
failure  to  perform  the  task  assigned.  If  this  punish- 
ment consist  of  the  assignment  of  a  similar  task  for 
future  performance  and  the  pupil  refuses  to  prepare 
such  composition,  he  may  be  disciplined  by  expulsion, 
suspension,  or  other  proper  punishment.^ 

Teaching  by  means  of  requiring  written  composi- 
tions is  not  inconsistent  with  a  statute  that  requires 

1  Cross  V.  Board,  &c.,  33  Ky.  L.  Rep.  472,  110  S.  W.  346. 

2  Samuel  Benedict  School  v.  Bradford,  111  Ga.  801,  36  S.  E.  920. 
^Ibid. 

218 


Ch.  VII]  COMPOSITIONS  AND  DEBATES  [§  89 

"  each  organized  town  to  keep  and  support  one  or 
more  schools,   provided  with  competent  teachers,   of 
good  morals,  for  the  instruction  of  the  young  in  orthog- 
raphy, reading,  writing,  English  grammar,  geography, 
arithmetic,  history  of  the  United  States,  and  good  be- 
havior."    It  is  obvious  that  English  composition  may 
fairly  be  regarded  as  an  allowable  mode  of  teaching 
many  of  these  branches.     Writing  requires  the  join- 
ing of  letters  into  words,  and  of  words  into  sentences, 
with   the   use   of   capitals,    punctuation   and   correct 
English.     Grammar  is  taught  more  effectively  by  writ- 
ing than  by  any  other  method.     Orthography  signifies 
literally  writing  correctly,  and  composition  is  the  only 
mode  of  securing  correct  orthography  in  a  mode  to  be 
of  practical  utihty.     So  too  geography,   history  and 
the  other  branches  mentioned  in  the  statute  are  by  writ- 
ing most  effectually  fixed  in  the  memory  of  the  pupil. 
And   so   in   regard   to   instruction  in   the   specified 
branches  of  common  school  education,  the  writing  of 
English  composition  in  different  forms  may  be  regarded 
as  an  allowable  mode  of  teaching  the  majority  of  them. 
The  requirement  by  a  teacher  that  the  pupils  in  gram- 
mar shall  write  English  compositions,  is  a  reasonable 
one,  and  if  a  pupil,  in  absence  of  a  request  from  his 
parent  that  he  may  be  excused  from  so  doing,  refuse 
to  comply  with  such  a  requirement,  he  may  for  such 
refusal,  be  expelled  from  a  pubhc  school.     And  such 
requirement  would  also  be  reasonable  and  proper  in 
regard  to  many  of  the  other  studies  prescribed  by  the 
statute.^ 

1  Guernsey  v.  Pitkin,  32  Vt.  224. 
219 


§  90]  RULES  AND   REGULATIONS  [Ch.  VII 

§  90.   Tardiness. 

Tardiness  is  a  recognized  offense  against  the  good 
order  and  proper  management  of  all  schools.^  A 
tardy  pupil  may  be  required  to  remain  in  some  part 
of  the  building  for  the  short  period  of  time  required 
to  complete  the  opening  exercises  of  a  school,  provided 
the  place  of  enforced  waiting  is  made  comfortable 
and  healthful  for  the  pupil,  and  in  accordance  with  the 
rule  that  due  regard  must  be  had  to  the  health,  com- 
fort, age  and  mental  as  well  as  physical  condition  of 
the  pupil,  and  to  the  circumstances  attending  each 
particular  emergency.^  Cold  weather  may  require 
a  modification  of  a  rule  that  under  moderate  tempera- 
ture would  be  reasonable ;  and  against  pupils  known 
to  have  some  physical  or  mental  infirmity,  a  modifica- 
tion or  relaxation  in  the  strict  enforcement  of  a  rule 
may  be  necessary. 

§  91.   Detention. 

The  detention  or  keeping  in  of  pupils  for  a  short 
time  after  the  other  members  of  the  class  have  been 
dismissed,  or  the  school  has  closed,  as  a  penalty  for 
some  misconduct,  shortcoming  or  mere  omission,  has 
been  very  generally  adopted  by  the  schools,  especially 
those  of  the  lower  grade,  and  it  is  now  one  of  the 
recognized  methods  of  enforcing  discipUne  and  promot- 
ing the  progress  of  the  pupils  in  the  common  schools. 
It  is  a  mild  and  non-aggressive  method  of  imposing  a 
penalty,  and  inflicts  no  disgrace  upon  the  pupil.     The 

^  Burdick  v.  Babcock,  31  Iowa  562. 

2  Fertich  v.  Michener,  111  Ind.  472,  11  N.  E.  605. 

220 


Ch.  VIII  SECRET  SOCIETIES  [§  92 

additional  time  thus  spent  by  the  pupil  in  study  pre- 
sumably inures  to  his  benefit. 

However  mistaken  a  teacher  may  be  as  to  the  justice 
or  propriety  of  imposing  such  a  penalty  at  any  partic- 
ular time,  it  has  none  of  the  elements  of  false  imprison- 
ment about  it,  unless  imposed  from  wanton,  willful 
or  malicious  motives.  In  the  absence  of  such  motives, 
such  a  mistake  amounts  only  to  an  error  of  judgment 
in  an  attempt  to  enforce  discipline  in  the  school  for 
which  an  action  will  not  lie.^  And  any  pubHc  officer, 
such  as  a  school  officer,  acting  in  good  faith,  is  not 
liable  for  errors  in  judgment. ^ 

§  92.    Secret  Societies. 

For  connection  with  secret  societies  pupils  may  not 
be  debarred  from  attending  public  schools.^  But 
school  directors  may  adopt  rules  debarring  members 
of  fraternities  organized  against  their  will,  from  partic- 
ipating in  certain  privileges  connected  with  member- 
ship in  school,  such  as  participating  in  graduation 
exercises,  joining  the  cadet  corps,  orchestra,  debating 
societies,  glee  clubs,  and  other  school  organizations, 
even  though  the  parents  of  the  pupils  consented  to 
their  joining  such  fraternities.^  This  has  been  held 
a  reasonable  rule  on  the  ground  that  such  membership 
tends  to  foster  insubordination  to  school  authorities, 
and  tends  to  lower  the  scholarship  of  the  pupils. 

*  Fertich  v.  Michener,  supra  cit. 

2  Donahoe  v.  Richards,  38  Me.  379. 

3  StaUard  v.  White,  82  Ind.  278. 

4  Wayland  v.  Board,  &c.,  43  Wash.  441,  86  Pac.  642. 

221 


§  92]  RULES  AND   REGULATIONS  [Ch.  VII 

The  first  Greek  letter  society  in  a  secondary  school 
was  Alpha  Phi,  a  literary  society,  which  became  part 
of  a  fraternity  in  1876.  Subsequently  secret  societies 
sprang  into  existence  in  high  schools  in  the  United 
States  to  a  great  extent.  Many  educators  have  come 
to  believe  that  whatever  good  might  be  claimed  for 
such  societies  among  mature  college  students,  was  not 
shared  by  such  societies  formed  among  students  of 
the  lower  grades  of  schools  whose  characters  are  to  a 
greater  extent  unformed. 

It  has  been  said  that  such  societies  tend  to  engender 
an  undemocratic  spirit  of  caste,  to  promote  cliques, 
and  to  foster  contempt  for  school  authority.  To  curb 
what  is  said  to  be  their  evil  effects  in  secondary  schools, 
rules  and  regulations  have  been  adopted  by  many 
school  authorities,  and  statutes  have  been  enacted 
in  several  States  including  California,  Ohio,  Indiana, 
Maine,  Minnesota,  Kansas  and  Vermont,  either  abso- 
lutely forbidding  them  or  placing  them  under  control. 

Cases  arising  on  the  statutes  and  local  regulations 
have  come  before  the  courts  of  several  States,  and  it 
has  been  uniformly  held  that  reasonable  rules  adopted 
by  school  authorities  to  prevent  the  establishment  and 
development  of  these  secret  societies  in  preparatory 
schools,  are  valid. ^ 

It  is  reasonable  for  a  board  of  education  to  adopt  a 
rule  requiring  teachers  to  refuse  to  give  public  recogni- 

1  Bradford  v.  Board,  &c.,  18  Cal.  App.  19, 121  Pac.  929 ;  Wayland 
v.  Board,  &c.,  43  Wash.  441,  86  Pac.  642;  Wilson  v.  Board,  &c., 
233  111.  464,  84  N.  E.  697 ;  Favorite  v.  Board,  &c.,  235  111.  314,  85 
N.  E.  402 ;  People  v.  Wheaton  College,  40  lU.  186. 

222 


Ch.  VII]  FOOTBALL  PLAYING  [§  93 

tioii  to  Greek  letter  societies,  or  allow  meetings  of  such 
societies  to  be  held  in  the  school  buildings,  or  permit 
the  name  of  the  school  to  be  used  in  connection  with 
such  societies,  or  allow  the  members  to  represent  the 
school  in  any  literary  or  athletic  contests,  or  in  any 
other  public  capacity.^ 

A  statute  prohibiting  secret  societies  and  fraterni- 
ties in  public  schools,  or  educational  institutions  sup- 
ported wholly  or  in  part  by  the  State,  is  not  uncon- 
stitutional as  infringing  privileges  and  immunities  of 
citizens.^ 

§  93.   Football  Playing. 

The  school  directors  may  make  a  rule,  "  Resolved, 
that  the  Board  of  Directors  disfavor  football  on  account 
of  injuries  to  life  and  limb,  and  for  that  reason  will  not 
permit  football  or  practice  under  the  auspices  of  the 
high  school,  or  on  the  school  grounds  ",  and  if  a  pupil 
violates  the  rule,  even  away  from  the  school  grounds, 
and  on  a  holiday,  by  participating  in  a  game  on  a  team 
advertised  as  representing  the  school,  he  may  be  sus- 
pended or  expelled.^  This  is  on  the  broad  ground  that 
if  the  effects  of  acts  done  out  of  school  hours  reach 
within  the  school  room  during  school  hours,  and  are 
detrimental  to  good  order  and  the  best  interests  of 
the  pupils,  it  is  evident  that  such  acts  may  be  for- 
bidden.'* 

1  Wilson  V.  Board,  &c.,  233  lU.  464,  84  N.  E.  697. 

2  Bradford  v.  Board,  &c.,  18  Cal.  App.  19,  121  Pac.  929 ;  Board, 
&c.,  V.  Waugh,  105  Miss.  623,  62  So.  827. 

3  Kinzer  v.  Directors,  &c.,  129  Iowa  441,  105  N.  W.  686. 
*  Burdick  v.  Babcock,  31  Iowa  562. 

223 


§  94]  RULES  AND   REGULATIONS  [Ch.  VII 

§  94.  Pupils  to  Go  Directly  Home  After  School. 

A  board  of  education  under  statutory  authority  to 
pass  rules  relative  to  anything  whatever  that  may 
advance  the  interests  of  education,  good  government, 
and  prosperity  of  the  public  schools,  and  the  welfare 
of  the  public  concerning  them,  may  require  pupils 
to  go  directly  home  when  dismissed  from  school,^ 
and  a  tradesman  has  no  right  of  action  for  a  loss  of 
patronage  resulting  from  the  enforcement  of  such 
order. 

It  is  not  only  the  legal  right,  but  the  moral  duty  of 
the  school  authorities,  to  require  children  to  go  directly 
from  school  to  their  homes.  All  parents  who  have  a 
proper  regard  for  the  welfare  of  their  children  desire 
it.  The  State  makes  it  compulsory  upon  parents  to 
send  their  children  to  school,  and  punishes  them  for  a 
failure  to  do  so.  The  least  that  the  State  can  in  reason 
do,  is  to  throw  every  safeguard  possible  around  the 
children  who,  in  obedience  to  the  law  are  attending 
school.  The  dangers  to  which  children  are  exposed 
upon  the  streets  of  cities  are  matters  of  common  knowl- 
edge. Humanity  and  the  welfare  of  the  country  demand 
that  a  most  watchful  safeguard  should,  as  far  as  possible 
accompany  the  children,  when  required  or  allowed  to 
be  on  the  streets.  Parents  have  a  right  to  understand 
that  their  children  will  be  promptly  sent  home  after 
school,  and  to  believe  that  something  unusual  has 
happened  when  they  do  not  return  in  time.  In  no 
other  way  can  parents  and  teachers  act  in  harmony 

1  Fertich  v.  Michener,  111  Ind.  472,  11  N.  E.  605. 
224 


Ch.  VII]        CONDUCT  OUTSIDE  OF  SCHOOL  [§  95 

to  protect  children  from  bad  influences,  bad  companion- 
ship, and  bad  morals.^ 

§  95.   Conduct  Outside  of  School. 

The  directors  of  a  school  district  are  not  authorized 
to  prescribe  a  rule  which  undertakes  to  regulate  the 
conduct  of  the  children  within  the  district  who  have 
a  right  to  attend  the  school,  after  they  are  dismissed 
from  it  and  remitted  to  the  custody  or  care  of  the 
parent  or  guardian,  except  as  to  matters  directly  affect- 
ing the  discipline  of  the  school.^  They  have  the 
unquestioned  right  to  make  needful  rules  for  the 
control  of  the  pupils  while  at  school  and  under  the 
charge  of  the  person  who  teaches  it,  and  it  would  be 
the  duty  of  the  teacher  to  enforce  such  rules  when 
made.  While  in  the  teacher's  charge,  the  parent 
would  have  no  right  to  invade  the  schoolroom  and 
interfere  with  him  in  its  management.  On  the  other 
hand,  when  the  pupil  is  released  and  sent  back  to  his 
home,  neither  the  teacher  nor  directors  have  the 
authority  to  follow  him  thither,  and  govern  his  con- 
duct while  under  the  parental  eye  in  matters  not  affect- 
ing the  discipline  of  the  school.  Therefore,  a  rule 
requiring  that  no  pupil  shall  attend  social  parties 
during  the  school  term,  and  expulsion  for  violation  of 
such  rule  by  a  pupil  having  permission  of  his  parents, 
is  unreasonable  and  unlawful.^ 

The  control  of  the  pupils  by  the  school  authorities 

» Jones  V.  Cody,  132  Mich.  13,  92  N.  W.  495. 
'  State  V.  District  Board,  &c.,  135  Wis.  619,  116  N.  W.  232. 
3  Dritt  V.  Snodgrass,  66  Mo.  286 ;  State  v.  Osborne,  24  Mo.  App. 
309. 

225 


§  96]  RULES  AND   REGULATIONS  [Cii.  VII 

after  school  hours,  obtains  until  the  pupils  are  at  home 
in  the  custody  of  their  parents,^  and  there  it  ceases 
except  as  to  matters  having  a  direct  tendency  to  affect 
the  discipline  of  the  school.^  The  school  directors 
have  no  right  to  enact  rules  which  invade  the  rights 
of  the  parents.  And  where  a  pupil  by  the  permission 
of  his  parents  violates  such  rule  and  is  expelled,  such 
expulsion  is  illegal.^  But  if  the  exclusion  was  without 
malice  on  the  part  of  the  directors,  they  are  not  per- 
sonally liable  therefor."*  And  school  authorities  have 
no  right  to  adopt  a  rule  requiring  all  pupils  of  the 
school  to  remain  in  their  homes  and  study  during  cer- 
tain designated  hours  in  the  evening.^ 

§  96.   Truancy.  —  Attendance  Officers. 

At  common  law  truancy  was  not  an  offense,  and  is 
now  an  offense  only  when  made  so  by  statute,  ordi- 
nance or  by-law.^  Although  truancy  as  an  offense  is 
committed  wholly  beyond  the  precincts  of  the  school, 
no  example  is  more  contaminating,  no  malconduct 
more  subversive  of  discipline,  and  an  incorrigible 
truant  may  be  expelled,  not  as  a  punishment  merely, 
but  as  a  protection  to  others  from  injurious  example 
and  influence.'^ 

A  rule  that  "  any  pupil  absent  six  half  days  in  four 

1  Jones  V.  Cody,  132  Mich.  13,  92  N.  W.  495. 

2  Gott  V.  Berea  College,  156  Ky.  376,  161  S.  W.  204. 

3  Dritt  V.  Snodgrass,  66  Mo.  286. 

4  Ibid. 

5  Hobbs  V.  Germany,  94  Miss.  469,  49  So.  515. 

«  Gushing  v.  Friendship,  89  Me.  525,  36  Atl.  1001. 
'  Sherman  v.  Charlestown,  8  Gush.  (Mass.)  160. 

226 


Ch.  VII]  INCIDENTAL  FEES  [§97 

consecutive  weeks,  without  satisfactory  excuse,  shall 
be  suspended  from  school  "  is  a  valid  rule,  and  clearly 
within  the  power  of  the  board  of  directors  to  adopt 
under  a  statute  providing  that  ''  the  board  shall  have 
the  power  to  make  all  needful  rules  and  regulations  for 
the  organization,  grading,  and  government  of  the 
schools  in  their  district."  ^ 

If  an  attendance  officer,  appointed  by  a  board  of 
education  pursuant  to  a  statute,  wrongfully  arrests 
a  pupil,  the  board  is  not  liable,  inasmuch  as  the  doc- 
trine of  respondeat  superior  does  not  apply  to  their 
relations. 2 

An  attendance  or  truant  officer  is  a  public  officer 
and  therefore  bound  to  qualify  by  taking  the  oath.^ 

§  97.   Incidental  Fees. 

Although  a  characteristic  feature  of  public  schools 
is  that  they  are  free  of  expense,  it  has  been  held  that 
a  reasonable  incidental  fee  may  be  imposed  upon  pupils 
to  pay  for  heat,  in  absence  of  a  statute  creating  a 
fund  for  that  purpose.  And  any  pupil  failing  to  comply 
with  such  rule  may  be  excluded  from  the  school.^ 

But  the  discretion  as  to  incidental  fees  must  be 
reasonably  exercised,  and  a  school  board  will  not  be 
permitted  to  exact  a  tuition  fee  from  a  pupil  of  a  publie 

1  King  V.  Jefferson,  &c.,  71  Mo.  628. 

2  Reynolds  v.  Little  Falls,  &c.,  33  N.  Y.  App.  Div.  88,  53  N.  Y.  S. 
75. 

3  Feathergill  v.  State,  33  Ind.  App.  683,  72  N.  E.  181. 

4  Bryant  v.  Whisenant,  167  Ala.  325,  52  So.  525.  There  is  a  well 
defined  distinction  between  tuition  and  reasonable  incidental  fees; 
State  V.  University  of  Wisconsin,  54  Wis.  159,  11  N.  W.  472 ;  Rober- 
son  V.  Oliver,  189  Ala.  82,  66  So.  645. 

227 


§971  RULES  AND   REGULATIONS  [Ch.  VII 

school  under  the  guise  of  a  mere  incidental  fee.  So 
where  an  excessive  fee  was  sought  to  be  exacted  from 
pupils  for  the  purpose  of  providing  supplies,  and  the 
balance  if  any  to  be  paid  to  teachers  in  order  that  the 
term  of  the  school  might  be  prolonged,  it  was  held  to 
be  a  tuition  fee  and  consequently  illegal.^ 

1  Roberson  v.  Oliver,  189  Ala.  82,  66  So.  645. 


228 


CHAPTER  VIII 

OF  BOOKS  AND  STUDIES 

§  98.   Prescribing  Studies. 

The  legislature,  in  its  plenary  control  of  the  public 
school  system,  may  prescribe  a  reasonable  course  of 
studies  for  the  public  schools,  but  the  courts  may  not 
do  so.^  And  the  legislature  has  the  power  in  estab- 
lishing and  controlling  the  public  school  system  to 
extend  it  beyond  the  common  branches  so  as  to  include 
public  instruction  in  agriculture  and  home  economics.^ 

Although  school  trustees  have  the  power  to  prescribe 
the  teaching  of  music  in  the  public  schools,^  they  have 
not  the  power  to  establish  a  course  of  study  inconsistent 
with  that  adopted  by  the  State  Board  of  Education.^ 

When  the  legislature  has  placed  the  management  of 
public  schools  under  the  exclusive  control  of  directors, 
trustees,  and  boards  of  education,  the  courts  have  no 
rightful  authority  to  interfere  by  directing  what  instruc- 
tion shall  be  given,  or  what  books  shall  be  used  therein.^ 

1  Roach  V.  St.  Louis,  &c.,  7  Mo.  App.  567. 

2  Associated  Schools,  &c.,  v.  School  District,  &c.,  122  Minn.  254, 
142  N.  W.  325. 

3  Myers  Pub.  Co.  v.  White  River,  &c.,  28  Ind.  App.  91, 62  N.  E.  66. 

4  Westland  Pub.  Co.  v.  Royal,  36  Wash.  399,  78  Pac.  1096. 
6  Board,  &c.,  v.  Minor,  23  Ohio  St.  211. 

229 


§99]  OF   BOOKS  AND   STUDIES  [Ch.  VIII 

And  the  courts  may  not  interfere  even  though  the 
committee  should  select  books  of  a  dangerous  and 
immoral  tendency.^ 

§  99.   Adoption  of  Books. 

The  statutes  of  many  States  provide  that  local 
authorities  shall  adopt  books  for  use  in  the  public 
schools,  and  each  board,  whether  of  a  city,  township, 
or  county  is  local  as  to  the  territory  of  its  jurisdic- 
tion. Therefore  the  board  in  a  city  is  local  as  to 
the  city;  the  board  of  a  township  is  local  as  to  the 
township ;  and  the  board  of  a  county  is  local  as  to 
the  county;  and  where  portions  of  a  county  are 
subject  to  local  boards  for  such  portions,  the  county 
board  is  local  as  to  the  remaining  portions  of  the 
county.  2 

A  State  may  even  purchase  books  and  compel  the 
patrons  of  the  school  to  buy  the  books  from  its  officers,^ 
and  a  State  may  also  provide  by  statute  that  a  desig- 
nated person  shall  have  the  exclusive  privilege  of 
furnishing  all  text-books  needed  for  the  use  of  the 
public  schools.^  And  it  is  within  the  power  of  the 
legislature  to  require  the  adoption  and  use  of  the  books 
of  a  designated  publisher.^  In  fact,  where  the  consti- 
tution of  a  State  does  not  prohibit,  the  State  legis- 
lature has   power  to   establish   a   uniform   series   of 

1  Donahoe  v.  Richards,  38  Me.  379. 

2  People  V.  Oakland,  &c.,  55  Cal.  331. 
^  Curryer  v.  Merrill,  25  Minn.  1. 

4  Bancroft  v.  Thayer,  5  Sawy.  (U.  S.  C.  C.)  502. 
^  State  V.  State  Board,  &c.,  18  Nev.  173,  1  Pac.  844;   People  v. 
Copeland,  &c.,  55  Cal.  331. 

230 


Ch.  VIII]  ADOPTION  OP  BOOKS  [§  99 

text-books  for  use  in  the  public  schools.^  And  the 
statutes  may  authorize  the  changing  of  text-books 
with  restrictions  as  to  the  number  of  changes  to  be 
made  within  a  given  time.^ 

Where  the  statute  provides  that  six  months' 
notice  of  a  proposed  change  of  text-books  shall  be 
given  by  the  State  Board  of  Education,  such  no- 
tice must  be  given  by  authority  of  the  board,  and 
it  is  not  sufficient  that  the  notice  be  given  in  the 
newspapers  as  a  matter  of  news.^  And  where  the 
statute  prescribes  that  the  school  board,  when  desir- 
ous of  adopting  text-books  for  use  in  the  schools 
of  the  district  for  the  ensuing  year,  shall  call  the 
teachers  for  that  year  to  be  present  at  a  meeting  for 
the  purpose  of  advice  and  consultation,  such  direc- 
tion is  mandatory,  and  therefore  the  adoption  of 
such  text-books  before  the  teachers  are  selected  is 
invalid.^ 

Where  the  legislature  fails  to  prescribe  a  uniform 
series  of  text-books  and  has  not  given  special  authority 
to  any  officer  or  board  to  do  so,  the  trustees  of  the 
school  district  have  the  right  to  prescribe  a  rule  desig- 
nating certain  text-books  for  use  in  the  public  schools 
of  their  district.^ 

1  State  V.  Haworth,  122  Ind.  462,  23  N.  E.  946 ;  Baltimore,  &c.,  v. 
State,  &c.,  26  Md.  505 ;  Curryer  v.  Merrill,  25  Minn.  1 ;  Leeper  v. 
State,  103  Tenn.  500,  53  S.  W.  962. 

2  People  V.  Board,  &c.,  175  111.  9,  51  N.  E.  633 ;  Jones  v.  Board,  &c., 
88  Mich.  371,  50  N.  W.  309 ;  State  v.  Board,  &c.,  18  Nev.  173,  1  Pac. 
844 ;  State  v.  Board,  &c.,  35  Ohio  St.  368. 

3  People  V.  Board,  &c.,  49  Cal.  684. 

4  Butler  V.  Shirley,  &c.,  15  Pa.  Co.  Ct.  291. 

5  Campana  v.  Calderhead,  17  Mont.  548,  44  Pac.  83. 

231 


§  100]  OF   BOOKS   AND   STUDIES  [Ch.  VIII 

§  100.  Uniformity  of  Books. 

Where  the  Constitution  of  a  State  makes  it  the  duty 
of  the  legislature  "  to  provide  by  law  for  a  general 
and  uniform  system  of  common  schools  ",  the  selecting 
and  establishing  of  a  uniform  standard  of  text-books, 
and  the  regulation  of  the  mode  of  obtaining  and  dis- 
tributing such  books  is  a  matter  for  legislative  action, 
and  does  not  impinge  in  the  slightest  degree  upon  the 
rights  of  local  self-government.  The  right  of  local 
self-government  is  an  inherent,  and  not  a  derivative, 
one.  Individualized,  it  is  the  right  which  a  man  pos- 
sesses in  virtue  of  his  character  as  a  freeman.  It  is 
not  bestowed  by  legislatures,  nor  derived  from  statutes. 
But  the  courts  which  have  carried  to  its  utmost  extent 
the  doctrine  of  local  self-government  have  never  so 
much  as  intimated  that  it  exists  as  to  a  matter  over 
which  the  constitution  has  given  the  law-making 
power  supreme  control ;  nor  have  they  gone  beyond 
the  line  which  separates  matters  of  purely  local  con- 
cern from  those  of  State  control. 

Essentially  and  intrinsically,  the  schools  in  which 
are  educated  and  trained  the  children  who  are  to 
become  the  rulers  of  the  Commonwealth  are  matters 
of  State,  and  not  of  local  jurisdiction.  In  such  matters 
the  State  is  a  unit  and  the  legislature  the  source  of 
power.  The  authority  over  schools  and  school  affairs 
is  not  necessarily  a  distributive  one  to  be  exercised 
by  local  instrumentalities,  but,  on  the  contrary,  it 
is  a  central  power  residing  in  the  legislature  of  the 
State.  It  is  for  the  law-making  power  to  determine 
whether  the  authority  shall  be  exercised  by  a  State 

232 


Oh.  VIII]  UNIFORMITY  OF  BOOKS  [§  100 

Board  of  Education,  or  distributed  to  county,  town- 
ship or  city  organizations  throughout  the  State.  With 
that  determination  the  judiciary  can  no  more  rightfully 
interfere  than  can  the  legislature  with  a  decree  or  judg- 
ment pronounced  by  a  judicial  tribunal.  The  decision 
is  as  conclusive  and  inviolable  in  the  one  case  as  in 
the  other,  and  an  interference  with  the  legislative  judg- 
ment would  be  a  breach  of  the  Constitution  which 
no  principle  would  justify  nor  any  precedent  excuse.^ 
As  the  power  over  schools  is  a  legislative  one,  it  is 
not  exhausted  by  exercise.  The  legislature,  having 
tried  one  plan,  is  not  precluded  from  trying  another. 
It  has  a  choice  of  methods  and  may  change  its  plans 
as  often  as  it  deems  necessary  or  expedient,  and  for 
mistakes  or  abuses  it  is  answerable  to  the  people,  but 
not  to  the  courts.  It  is  clear,  therefore,  that  even 
if  it  were  true  that  the  legislature  had  uniformly  in- 
trusted the  management  of  school  affairs  to  local  or- 
ganizations, it  would  not  authorize  the  conclusion  that 
it  might  not  change  the  system.    To  deny  the  power 

1  State  V.  Springfield,  &c.,  74  Mo.  21 ;  State  v.  Columbus  Board, 
&c.,  35  Ohio  St.,  368;  Baltimore  School  Com'rs  v.  State  Board, 
&c.,  26  Md.  505 ;  Robinson  v.  Howard,  84  N.  C.  151 ;  Stuart  v. 
Kalamazoo,  &c.,  30  Mich.  69 ;  Ford  v.  Kendall,  &c.,  121  Pa.  St. 
543,  15  Atl.  812 ;  People  v.  Quincy,  &c.,  101  111.  308 ;  Richards  v. 
Raymond,  92  111.  012 ;  Powell  v.  Board,  &c.,  97  111.  375 ;  Briggs  v. 
Johnson  Co.,  4  Dill.  (U.  S.  C.  C.)  148 ;  Rawson  v.  Spencer,  113  Mass. 
40;  Com.  v.  Hartman,  17  Pa.  St.  118;  Clark  v.  Haworth,  122  Ind. 
462,  23  N.  E.  946 ;  Cooley's  Constitutional  Limitations,  7th  ed., 
261,  note  1 ;  Leeper  v.  State,  103  Tenn.  500,  53  S.  W.  ,962 ;  Ivison  v. 
School  Com'rs,  39  Fed.  735 ;  Effingham  v.  Olson,  48  Kan.  565,  30 
Pac.  16;  Johnson  v.  Ginn,  105  Ky.  654,  49  S.  W.  470;  Com.  v. 
Ginn,  111  Ky.  110,  63  S.  W.  467;  Hartwell  v.  Littleton,  13  Pick. 
(Mass.)  229. 

233 


§  100]  OF   BOOKS   AND   STUDIES  [Cn.  VIII 

to  change  is  to  affirm  that  progress  is  impossible  and 
that  we  must  move  forever  "  in  the  dim  foot-steps  of 
antiquity."  But  the  legislative  power  moves  in  a 
constant  stream  and  is  not  exhausted  by  its  exercise 
in  any  number  of  instances,  however  great. ^ 

It  is  impossible  to  conceive  of  the  existence  of  a 
uniform  system  of  common  schools  without  power 
lodged  somewhere  to  make  it  uniform,  and  even  in 
the  absence  of  express  constitutional  provisions,  that 
power  must  necessarily  reside  in  the  legislature.  If 
it  does  reside  there,  then  that  body  must  have,  as  an 
incident  of  the  principal  power,  the  authority  to  pre- 
scribe the  course  of  study  and  the  system  of  instruc- 
tion that  shall  be  pursued  and  adopted,  as  well  as  the 
books  which  shall  be  used.  This  general  doctrine 
is  well  entrenched  by  authority.- 

Where  the  statute  requires  the  adoption  of  "  a  uni- 
form series  "  of  text-books  in  the  public  schools,  this 
term  applies  to  the  entire  series  of  text-books  adopted, 
and  the  term  "  uniformity  "  does  not  mean  that  all 
the  text-books  of  one  author  in  grammar,  arithmetic 
or  other  study  for  the  different  grades  of  scholars 
must  be  used.  Boards  of  education  are  at  liberty, 
under  a  "  uniformity  "  law,  to  adopt  the  book  of  one 
author  for  use  in  all  the  primary  departments,  and  the 
book  of  another  author  on  the  same  subject  in  all 
grammar  or  higher  departments.     All   that  the  law 

1  Clark  V.  Haworth,  122  Ind.  462,  23  N.  E.  946. 

^Ibid.;  Hovey  v.  State.  119  Ind.  395,  21  N.  E.  21;  State  v. 
Hawkins,  44  Ohio  St.  98,  5  N.  E.  228 ;  State  v.  Harmon,  31  Ohio 
St.  250. 

234 


Ch.  VIII]  TEXT-BOOK  COMMISSIONS  [§  101 

requires  is  that  they  shall  be  uniform  in  the  same 
grade.  ^ 

§  101.   Text-Book  Commissions. 

In  some  States  the  statutes  have  created  a  school 
book  or  text-book  commission,  with  view  of  establish- 
ing uniform  text-books  throughout  the  State.  Al- 
though such  uniformity  tends  to  lower  the  cost  of 
school  books,  and  is  consequently  desirable,  the  prin- 
cipal mischief  sought  to  be  avoided  by  such  statutes 
was  the  lack  of  uniformity  in  the  books  in  the  same 
grades  of  the  public  schools,  which  necessitated  the 
purchase  of  new  books  for  school  children  when  a 
faiTiily  moved  from  one  district  to  another. 

The  purpose  of  such  statutes  is  not  to  be  thwarted 
by  the  local  adoption  of  "  reference  "  books  to  be  used 
in  connection  with  books  adopted  by  the  Text-Book 
Commission;  and  a  first  reader  cannot  be  used  as  a 
reference  book  by  a  child  learning  to  read  in  another.^ 

Where  the  statute  provides  for  a  school  book  com- 
mission with  power  to  select  text-books  and  to  make 
contracts  for  supplying  such  books  to  the  pupils,  the 
legislature  has  the  power  to  delegate  the  power  of 
adopting  or  changing  text-books  to  the  State  board, 
local   board,    or    committee.^     And   the   appointment 

1  Heath  &  Co.  v.  Board,  &c.,  133  Mich.  681,  95  N.  W.  746 ;  State 
V.  Fairchild,  87  Kan.  781,  125  Pac.  40. 

2  State  V.  Innes,  89  Kan.  168,  130  Pac.  677. 

3  School  Trustees  v.  People,  87  111.  303 ;  Third  Ward  School  Dis- 
trict V.  City  Board,  &c.,  23  La.  An.  152 ;  Jones  v.  Board,  &c.,  88 
Mich.  371,  50  N.  W.  309 ;  Effingham  v.  HamUton,  68  Miss.  523,  10 
So.  39;  State  v.  Board,  &c.,  18  Nev.  173,  1  Pac.  844;  State  v. 
Board,  &c.,  35  Ohio  St.  368. 

235 


§  102]  OF   BOOKS   AND   STUDIES  [Ch.  VIII 

of  a  school  book  commission,  whose  duties  are  to  select 
text-books  and  make  contracts  for  supplying  the 
pupils  therewith,  is  not  a  supervision  of  instruction.^ 

§  102.  Bids  for  Supplying  Books. 

Having  the  authority  to  provide  uniformity  in  text- 
books, the  legislature  may  not  only  prescribe  regu- 
lations for  using  such  books,  but  it  may  also  declare 
how  the  books  shall  be  obtained  and  distributed.  If 
it  may  do  this,  then  it  may  provide  that  they  shall  be 
obtained  through  the  medium  of  a  contract  awarded 
to  the  best  or  lowest  bidder,  since,  if  it  be  true,  as  it 
unquestionably  is,  that  the  power  is  legislative,  it 
must  also  be  true  that  the  legislature  has  an  unrestricted 
discretion  and  an  unfettered  choice  of  methods. 

If  the  legislature  exercises  its  right  to  make  a  choice 
of  methods  by  enacting  that  the  books  for  the  schools 
shall  be  furnished  by  the  person  making  the  most 
acceptable  bid,  the  courts  cannot  interfere,  because 
the  power  exercised  is  a  purely  legislative  one,  and 
within  the  legislative  domain  courts  are  forbidden  to 
enter.  There  is  no  escape  from  this  conclusion  save 
by  a  denial  of  legislative  independence,  and  an  asser- 
tion of  the  right  of  judicial  surveillance  and  control. 

A  legislative  act  providing  for  the  furnishing  of 
books  for  the  public  schools  is  passed  for  the  purpose 
of  benefiting  the  public  and  therefore  cannot  be  declared 
invalid  as  requiring  public  officers  to  perform  duties 
which  incidentally  confer  a  benefit  upon  individual 
book  dealers.     Such  an  act  does  not  contravene  con- 

1  Wolfe  V.  Bronson,  115  Mo.  271,  21  S.  W.  1125. 
236 


Ch.  VIII]  FREE  BOOKS  [§  103 

stitutional  provisions  against  monopolies  because  it 
designates  certain  books  as  a  standard  and  requires 
that  books  furnished  be  equal  in  merit  to  those  named 
and  adopted,  and  permits  the  selection  of  copyrighted 
books  requiring  that  the  exclusive  contract  for  furnish- 
ing them  be  awarded  to  the  best  and  lowest  bidder 
where  there  is  no  exclusion  of  persons  from  bidding 
but  allows  the  competition  to  be  by  open  bidding.^ 

Where  the  statute  provides  that  in  receiving  bids 
for  the  furnishing  of  school  books  a  convention  shall  be 
called  for  that  purpose  which  "  shall  meet  and  publicly 
open  and  read  the  proposals",  such  provision  is  directory 
only  and  a  failure  to  literally  comply  therewith  is  not 
material,  but  a  substantial  compliance  is  sufficient. ^ 

Where  the  board  of  directors  are  empowered  by 
statute  to  adopt  and  purchase  text-books,  after  ad- 
vertising for  bids  thereon  and  awarding  the  contract 
to  the  lowest  responsible  bidder,  the  awarding  of  such 
contract  without  advertising  is  illegal,  not  only  as  to 
the  contract  but  also  as  to  the  text-books  selected.^ 

Where  the  successful  bidder  for  the  supply  of  school 
books  fails  to  deliver  a  contract  which  he  has  executed, 
the  board  of  education  is  authorized  to  make  a  new 
contract  under  the  advertisement  for  bids.^ 

§  103.   Free  Books. 

In  the  absence  of  special  legislation,  a  school  board 
has  not  the  power  to  purchase  and  furnish  free  text- 

1  Clark  V.  Haworth,  122  Ind.  462,  23  N.  E.  946. 

2  Tanner  v.  Nelson,  25  Utah  226,  70  Pac.  984. 

3  McNees  v.  School,  &c.,  133  Iowa  120,  110  N.  W.  736. 

4  Johnson  Pub.  Co.  v.  Blease,  91  S.  C.  55,  74  S.  E.  36. 

237 


§  104]  OF   BOOKS  AND   STUDIES  [Ch.  VIII 

books. ^  But  the  legislature  by  statute  may  prescribe 
that  the  books  shall  be  furnished  free  of  cost  to  parent 
or  pupil. ^ 

Where  the  statute  provides  that  the  school  committee 
of  each  town  shall  procure  class  books  at  the  expense 
of  the  town  to  be  paid  for  out  of  the  town  treasury, 
the  committee  may  either  get  the  books  on  credit  of 
the  town,  or  may  themselves  buy  them  at  advanta- 
geous prices  and  thereby  make  themselves  creditors  of 
the  town  in  like  amount.  In  such  cases  the  rule  that 
an  agent  to  purchase  cannot  himself  be  the  seller  does 
not  apply.^ 

§  104.   Publishers'  Contracts. 

The  legislature  has  the  power  to  compel  publishers 
of  school  books  to  license  their  books  as  a  condition 
precedent  to  their  sale  for  use  in  the  public  schools. 
That  body  may  also  fix  a  price  on  the  text-books  to  be 
used,  and  such  law  is  not  unconstitutional,  as  the  pub- 
lishers may  refuse  to  contract  in  compliance  with  such 
statute,  even  if  the  result  be  the  closing  of  the  public 
schools.^ 

When  a  State  Board  of  Education  has,  in  connection 
with  the  adoption  of  a  series  of  text-books,  contracted 
with  the  publisher  for  the  use  of  such  books  for  a  period 
of  five  years  in  certain  grades  in  the  public  schools, 

^  Jackson,  &c.,  v.  Hadley,  59  Ind.  534 ;  Honey  Creek,  &c.,  v. 
Barnes,  119  Ind.  213,  21  N.  E.  747. 

2  Board,  &c.,  v.  Detroit,  80  Mich.  548,  45  N.  W.  585;  Shelby 
County  Council  v.  State,  155  Ind.  216,  57  N.  E.  712. 

3  Hartwell  v.  Littleton,  13  Pick.  (Mass.)  229. 

^  Polzin  V.  Rand,  McNally  &  Co.,  250  111.  561,  95  N.  E.  623. 

238 


Ch.  VIII]  PUBLISHERS'  CONTRACTS  [§  104 

the  legislature  has  no  power  to  impair  the  obhgation 
of  the  contract ;  and  the  fact  that  the  books  adopted 
were  found  too  advanced  for  the  grade  in  which  they 
were  to  be  used  is  no  excuse  for  the  breach  of  such 
contract.^  And  if  such  adopted  book  is  not  used  at 
all  for  one  of  the  years  of  such  contract,  a  mandamus 
will  lie  to  compel  its  use.^  But  not  if  unused  for  a 
portion  of  a  year  of  the  contract.^  And  where  such 
contract  provides  for  changes  in  and  additions  to  such 
books  required  to  be  furnished  by  such  contract,  it 
is  not  competent  in  defense  of  a  breach  thereof,  to 
say  that  such  altered  book  is  not  the  book  adopted.^ 

Wliere  such  contract  is  in  conformance  to  law,  made 
between  the  State  Board  of  Education  and  the  pub- 
lisher, boards  of  school  directors,  not  being  parties  to 
such  contract,  are  not  entitled  to  question  their  legality 
in  an  action  brought  against  them  to  compel  a  compli- 
ance therewith.^  And  the  fact  that  a  school  book 
board  changed  books  without  sufficient  vote,  is  not 
sufficient  ground  for  a  publisher,  having  a  five  year 
contract  to  furnish  books,  to  compel  such  board  to 
renew  its  contract  for  another  period  of  five  years.® 

An  offer  to  supply  a  State  with  certain  books,  when 
accepted  by  a  vote  of  the  legislature  becomes  a  valid 
contract.^ 

1  Rand,  McNally  &  Co.  v.  Hartranft,  32  Wash.  378,  73  Pac.  401. 

2  Eaton  &  Co.  v.  Royal,  36  Wash.  435,  78  Pac.  1093. 

3  Wagner  v.  Royal,  36  Wash.  428,  78  Pac.  1094. 

4  Ibid. 

5  Rand,  McNally  &  Co.  v.  Royal,  36  Wash.  420,  78  Pac.  1103. 

6  Ginn  &  Co.  v.  Schoolbook  Board,  &c.,  62  W.  Va.  428,  59  S.  E.  177. 

7  Com.  V.  CoUins,  75  Ky.  386. 

239 


§  105]  OF  BOOKS  AND   STUDIES  [Ch.  VIII 

§  105.  Publishers'  Bonds. 

In  some  States  the  statute  requires  that  a  pubhsher 
who  contracts  to  furnish  certain  school  books  shall 
give  a  bond  so  conditioned  as  to  prevent  the  sale 
of  such  books  at  a  lower  price  in  other  States,  and 
that  the  books  shall  be  equal  to  the  samples  furn- 
ished. The  exacting  of  such  bond  and  the  inflicting 
of  the  penalty  for  breach  thereof  by  a  publisher 
of  school  books,  is  not  unconstitutional  as  depriving 
such  publisher  of  his  property  without  due  process  of 
law.^ 

Where  school  book  publishers  give  such  bond  and 
are  made  defendants  in  an  action  for  the  breach  thereof, 
it  is  not  material  whether  the  school  board  of  the  county 
in  which  the  breach  occurred,  took  an  oath  of  office, 
or  whether  the  County  Superintendent  caused  the 
books  to  be  adopted  in  the  common  schools  of  the 
county  after  the  breach  occurred.^  And  only  one 
recovery  may  be  had  on  the  same  bond.' 

In  an  action  upon  such  bond,  for  failure  to  furnish 
books  equal  to  the  samples  furnished,  it  is  proper  for 
the  publisher's  representative  to  testify  that  book 
binderies,  including  that  of  his  own  company,  occasion- 
ally sent  out  imperfect  books.^ 

1  Rand,  McNally  &  Co.  v.  Com.,  32  Ky.  L.  Rep.  1168,  108  S.  W. 
892. 

2  Mavnard,  MerrUl  &  Co.  v.  Chowning,  31  Ky.  L.  Rep.  1340,  105 
S.  W.  114. 

3  Burton  v.  Maynard,  Merrill  &  Co.,  31  Ky.  L.  Rep.  1342,  105 
S.  W.  115. 

4  Rand,  McNally  &  Co.  v.  Com.,  32  Ky.  L.  Rep.  441,  106  S.  W. 
238,  108  S.  W.  892. 

240 


Ch.  VIII]  PUBLISHERS'  BONDS  [§  105 

Where  the  statute  requires  a  bond  from  a  book 
publisher  conditioned  that  the  books  adopted  shall 
be  sold  as  cheaply  as  in  other  localities  or  States,  a 
surety  on  such  bond  is  not  liable  for  his  principal's 
violation  of  the  agreement  as  to  books  adopted  prior 
to  the  execution  of  the  bond.^  It  is  no  defense  to  an 
action  for  the  breach  of  condition  in  such  bond,  that 
conditions  in  the  contracting  State  were  not  similar 
to  those  obtaining  in  other  States ;  ^  and  a  plea  of  no 
consideration  for  such  bond  is  of  no  merit. ^ 

It  is  not  necessary  in  an  action  on  such  bond  for 
the  plaintiff  to  show  that  the  books  offered  for  sale  in 
another  State  were  the  same  in  paper,  binding,  typog- 
raphy, and  other  respects,  as  the  sample  copy  filed 
with  the  bond  in  compliance  with  the  statute.^  And 
in  an  action  brought  for  the  breach  of  such  condition  in 
such  bond,  the  proof  of  a  contract  to  sell  such  books  at  a 
lower  rate  is  sufficient  without  showing  any  actual  sales.  ^ 

The  adoption  of  any  book  not  set  out  in  the  bond  is 
void,^  and  selling  at  a  lesser  price  in  another  State  is 
a  breach  of  such  bond.'^  And  under  a  statute  which 
provides  that  an  act  required  to  be  done  by  three  or 
more  persons  shall  be  deemed  the  act  of  all  when  done 
by  a  majority  of  them,  such  bond  is  valid  when  ap- 
proved by  two  of  them.^    A  breach  of  such  bond  can 

1  Graziani  v.  Com.,  30  Ky.  L.  Rep.  119,  97  S.  W.  409. 

2  Johnson  Pub.  Co.  v.  Com.,  30  Ky.  L.  Rep.  148,  97  S.  W.  749. 

3  Graziani  v.  Burton,  30  Ky.  L.  Rep.  180,  97  S.  W.  800. 
^  Ibid.  5  75^-^, 

s  Johnson  v.  Ginn,  105  Ky.  654,  49  S.  W.  470. 
'  Com.  V.  Ginn,  111  Ky.  110,  63  S.  W.  467. 
8  Ibid. 

241 


§  106]  OF   BOOKS   AND   STUDIES  [Ch.  VIII 

occur  only  from  sales,  or  contract  to  sell,  made  by  the 
publisher,  and  not  from  sales  made  by  others  without 
participation  therein  by  such  publisher.^ 

Where  the  statute  authorizes  the  County  Superin- 
tendent to  sue  for  the  forfeiture  of  a  bond,  collect 
the  judgment  and  pay  the  money  into  the  county 
treasury,  he  cannot  accept  in  satisfaction  less  than 
the  whole  amount  of  the  judgment ;  and  his  act  in 
accepting  a  note  for  a  lesser  amount  and  entering  a 
satisfaction  of  the  judgment  is  void.^ 

§  106.   Studies  Prescribed  or  Prohibited  by  Parent. 

If  a  pupil  attends  school  it  must  be  presumed  he 
submits  himself  to  the  rules,  and  must  attend  to  all 
studies  that  are  required  of  him,  under  penalty  of 
expulsion.  But,  in  the  absence  of  a  statute  making 
education  compulsory,  the  teacher  may  not  punish 
a  pupil  for  not  doing  something  the  parent  has  requested 
the  pupil  be  excused  from  doing.^  A  parent  may  direct 
his  child,  attending  a  public  school,  to  study  only 
certain  subjects  taught  in  the  school.  And  if  a  teacher, 
having  notice  of  such  direction,  required  the  child 
to  study  other  subjects  and  whips  him  for  not  doing 
so,  it  is  an  unlawful  assault. 

The  right  of  the  parent  reasonably  to  prescribe  the 
subjects  which  the  child  is  to  study  is  paramount,^ 
and  from  the  mere  fact  that  the  parent  sends  his  child 

1  Mills  V.  Meyers,  24  Ky.  L.  Rep.  971,  70  S.  W.  412. 

2  Heath  &  Co.  v.  Com.,  129  Ky.  835,  113  S.  W.  69. 
'  State  V.  Mizner,  50  Iowa  145. 

4  People  V.  Olmstead,  27  Barb.  (N.  Y.)  9 ;  State  v.  School  Dis- 
trict, 31  Neb.  552,  48  N.  W.  393. 

242 


Ch.  VIII]    STUDIES  PRESCRIBED  BY  PARENT  [§  lOG 

to  a  public  school  may  not  be  implied  that  he  surrenders 
all  control  over  the  direction  of  the  child's  studies. 
The  parent's  right  to  make  a  reasonable  selection  of 
the  studies  which  he  desires  his  child  to  pursue,  is 
superior  to  that  of  the  school  authorities,  and  such 
selection  if  reasonable  must  be  respected  by  them.^ 
And  the  right  of  a  parent  to  make  a  reasonable  selec- 
tion of  studies  for  his  child  is  not  limited  to  any  par- 
ticular grade  or  school.^ 

The  desires  of  the  parent,  however,  must  be  within 
reason  and  not  exercised  arbitrarily.  Of  course,  such 
prescribing  of  studies  could  not  be  reasonable  if  the 
gradation  or  classification  of  the  school  were  interfered 
with.^  And  a  parent  has  no  right  unreasonably  and 
arbitrarily  to  demand  that  his  child  shall  be  excused 
from  pursuing  a  certain  study  in  a  public  school. 
Notwithstanding  such  wishes  of  the  parent,  the  child 
may  be  excluded  from  a  public  school  for  refusal  to 
comply  with  the  orders  of  the  school  board  that  pupils 
shall  devote  a  certain  period  in  the  study  and  practice 
of  music,  and  provide  themselves  with  certain  books 
therefor.* 

1  School  Board,  &c.,  v.  Thompson,  24  Okla.  1,  103  Pac.  578. 

2  State  V.  Ferguson,  95  Neb.  63,  144  N.  W.  1039. 
^  Morrow  v.  Wood,  35  Wis.  59. 

4  State  V.  Webber,  108  Ind.  31,  8  N.  E.  708. 


243 


CHAPTER  IX 

OF  SCHOOL  FUNDS 

§  107.   Sources  of  Funds. 

The  methods  by  which  school  funds  are  acquired 
are  many  and  varied.  In  different  States  the  sources 
of  such  revenue  include :  unclaimed  money  and  valu- 
ables found  on  dead  bodies/  the  money  arising  from 
the  sale  of  estrays/  forfeited  bail  money/  a  portion 
of  the  county  taxes  on  property/  escheated  property/ 
dog  taxes/  liquor  license  revenue/  poll  tax/  funds 
not  needed  for  the  original  purpose/  fines  and  for- 
feitures arising  under  penal  laws/°  railroad  tax/^  and 
general  taxation. ^^^ 

^  State  V.  Marion  County  Com'rs,  85  Ind.  489. 

^  Tippecanoe  County  v.  State,  92  Ind.  353. 

3  State  V.  Farrell,  83  Iowa  661,  49  N.  W.  1038. 

^  Trustees,  &c.,  v.  Ormsby  County  Com'rs,  1  Nev.  334. 

5  Hinkle's  Lessee  v.  Shadden,  32  Tenn.  46. 

«  Ex  -parte  Cooper,  3  Tex.  App.  489 ;  Maloy  v.  Madget,  47  Ind. 
241. 

'  State  V.  Forkner,  70  Ind.  241 ;  City  of  Hastings  v.  Thorne,  8 
Neb.  160;  State  v.  Wilcox,  17  Neb.  219,  22  N.  W.  458;  Board,  &c., 
V.  Tafoya,  6  N.  M.  292,  27  Pac.  616. 

8  Albertville  v.  Rains,  107  Ala.  691,  18  So.  255. 

9  School  District  v.  Edwards,  46  Wis.  150,  49  N.  W.  968. 

10  Board,  &c.,  v.  Harrodsburg,  &c.,  9  Ky.  L.  Rep.  605,  7  S.  W.  312. 
"  Board,  &c.,  v.  Trustees,  &c.,  18  Ky.  L.  Rep.  103,  35  S.  W.  549. 
12  Opinion  of  Justices,  68  Me.  582. 

244 


Ch.  IX]  BORROWING  MONEY  [§  108 

And  a  gift  to  a  town  to  apply  the  income  to  the 
support  of  the  pubhc  schools  in  said  town  in  such  a 
way  as  the  town  shall  judge  best,  is  a  gift  for  a  charitable 
use,  which  the  town  may  properly  take,^  as  also  may  a 
parish.  2 

Where  the  statute  provides  that  one-half  of  all 
moneys  received  by  city  or  village  from  a  specified 
source,  shall  be  paid  over  to  the  trustees  of  the  school 
district  within  the  corporate  limits  of  such  city  or 
village,  the  fact  that  such  school  district  comprises  a 
larger  territory  than  that  of  such  city  or  village  is 
no  excuse  for  failure  to  make  such  payment.^ 

Although  the  power  is  given,  in  the  first  instance, 
to  each  school  district,  by  vote,  to  raise  money  to 
build  or  repair  schoolhouses  for  the  use  of  the  district, 
and  to  locate  the  same,  it  is  a  power  which  the  school 
district  cannot  delegate,*  but  which  jurisdiction,  on 
their  unreasonable  neglect  or  refusal,  devolves  on  the 
selectmen  of  the  town  as  agents  of  the  municipality.^ 

§  108.   Borrowing  Money. 

The  power  given  by  statute  to  a  school  board  to 
make  all  arrangements  necessary  to  the  efficient  opera- 
tion of  the  public  schools  does  not  authorize  the  borrow- 
ing of  money.  ^    The  statute,  however,  may  specifically 

1  Davis  V.  Barnstable,  154  Mass.  224,  28  N.  E.  165. 

2  Sutton,  &c.,  V.  Cole,  3  Pick.  (Mass.)  232. 

3  School  District,  &c.,  v.  Village,  &c.,  13  Idaho  471,  90  Pac.  735. 

4  Benjamin  v.  Hull,  17  Wend.  (N.  Y.)  437. 

5  Blake  v.  Sturtevant,  12  N.  H.  567 ;  Christ  v.  Brownsville  Tp., 
10  Ind.  461 ;  Heal  v.  Jefferson  Tp.,  15  Ind.  431. 

6  Board,  &c.,  v.  Fudge,  4  Ga.  App.  637,  62  S.  E.  154. 

245 


§  109]  OF   SCHOOL   FUNDS  [Ch.  IX 

authorize  a  school  district  to  borrow  money,  but  if 
the  statute  provides  that  money  for  a  specific  purpose 
shall  be  raised  by  taxation,  it  cannot  lawfully  be 
raised  by  borrowing  and  issuing  bonds. ^ 

A  vote  to  borrow  money,  passed  at  a  district  meeting 
illegally  held,  creates  no  liability  by  which  the  district 
may  be  held  to  repay  money  borrowed  in  pursuance 
of  such  vote.2  Money  borrowed  by  a  school  board  is 
not  a  part  of  the  common  school  fund,  and  on  a  bond 
given  by  a  school  commissioner  conditioned  for  the 
faithful  discharge  of  the  duties  required  of  him  by 
virtue  of  his  office,  the  sureties  are  not  liable  for  his 
improper  disbursement  of  such  money.^ 

§  109.   Promissory  Notes. 

In  some  States  it  is  held  that  a  quasi  corporation 
may  bind  itself  by  a  negotiable  promissory  note  or 
bill  of  exchange  for  any  debt  contracted  in  the  course 
of  its  legitimate  business,  for  any  expenses  incurred 
in  any  matter  or  thing  which  it  is  authorized  to  do, 
or  any  matter  which  is  not  foreign  to  the  purposes 
of  its  creation;  and  when,  by  statute,  an  additional 
power  is  given  to  raise  money  by  taxation,  this  pre- 
existing power  to  bind  itself  is  not  thereby  taken 
away.^ 

But  in  Illinois  it  has  been  held  that  a  school  board 
cannot  make  a  valid  promissory  note  which  will  bind 

1  Richardson  v.  McReynolds,  114  Mo.  641,  21  S.  W.  901. 

2  Lander  v.  School  District,  &c.,  33  Me.  239. 

3  Board,  &c.,  v.  Fudge,  4  Ga.  App.  637,  62  S.  E.  154. 

4  Clarke  v.  School  District,  &c.,  3  R.  L  199 ;  School  District  v. 
Thompson,  5  Minn.  280 ;  Robbins  v.  School  District,  10  Minn.  340. 

246 


Ch.  IX]  CUSTODIAN  AND  DEPOSITARY  [§  110 

the  district,  without  a  vote  of  the  electors.^  And  in 
Indiana  it  has  been  held  that  although  they  have  the 
power  to  make  a  lawful  promissory  note  such  note  is 
not  subject  to  the  conditions  of  the  law  merchant. ^ 

Where  a  school  district  has  authority  to  incur  a  debt, 
the  directors  have  authority  to  make  a  promissory 
note  in  payment  thereof,  as  in  payment  for  work 
done  on  a  school  building.^ 

The  words  "  School  Trustees  "  after  the  signatures 
of  the  makers  of  a  note  are  descriptio  personarum,  and 
the  note  is  not  that  of  the  school  corporation.^ 

§  110.    Custodian  and  Depositary. 

The  treasurer  of  a  school  district,  who  is  proper 
custodian  of  the  district  funds,  may  demand  from 
the  collector  any  funds  already  collected,  and  on  de- 
fault of  payment  may  bring  suit  to  recover.^ 

In  Iowa  it  has  been  held  that  a  school  district  treas- 
urer who  selects  a  bank  as  a  depositary  of  school 
funds,  in  good  faith  and  without  negligence,  is,  in 
case  of  loss,  not  guilty  of  a  breach  of  his  official  bond.^ 
But  the  general  rule  is  that  he  is  absolutely  responsible.^ 

Where  the  statute  provides  that  the  treasurer  of  a 
school  district  shall  "  hold  "  all  moneys  belonging  to 
the  district  it  does  not  mean  that  such  treasurer  shall 

1  School  Directors  v.  Miller,  54  111.  338. 

^  Sheffield,  &c.,  v.  Andress,  56  Ind.  157. 

3  Ibid. 

"  Trustees,  &c.,  v.  Rautenberg,  88  111.  219. 

^  Hendricks  v.  Bobo,  12  La.  An.  620.    See  also,  §  60,  supra. 

6  Hansen  v.  Holstein,  155  Iowa  264,  135  N.  W.  1090. 

^  See  §  60,  supra. 

247 


§  111]  OF   SCHOOL   FUNDS  [Ch.  IX 

at  all  times  keep  the  moneys  in  his  physical  possession 
but  allows  him  to  deposit  the  money  in  a  reputable 
and  solvent  bank  to  his  credit  as  treasurer.^  And 
where  a  school  board  through  caprice,  favoritism  and 
arbitrary  action,  award  the  funds  to  a  depositary 
which  is  the  lowest  bidder,  this  is  a  ministerial  act,  or 
executive  function,  against  which  a  mandamus  will  lie 
to  compel  such  board  to  award  the  school  funds  to  the 
highest  bidder.^ 

§  111.   Certificates  of  Indebtedness.  —  Warrants. 

The  power  to  draw  orders,  sometimes  termed  war- 
rants, or  certificates  of  indebtedness,  upon  the  school 
fund,  is  a  personal  trust  which  cannot  be'  delegated, 
therefore  such  orders  must  be  executed  in  person  by 
each  of  the  directors  and  the  execution  thereof  cannot 
be  delegated  by  the  board  to  one  of  their  number. 
And  where  the  statute  requires  that  such  order  shall 
show  on  its  face  the  purpose  for  which  the  order  was 
drawn,  the  provision  is  mandatory,  and  if  not  so  drawn 
the  order  is  void ;  nor  can  it  be  made  valid  by  the 
action  of  that  or  any  succeeding  board. ^  Likewise, 
when  the  statute  prescribes  a  form  for  orders  to  be 
drawn  upon  the  treasurer  it  must  be  followed."^ 

The  indorsee  of  a  school  order  is  in  no  better  position 
than  the  payee,  and  takes  it  subject  to  all  its  infirmi- 
ties, such  as  ultra  vires,  and  want  or  failure  of  con- 

1  Hunt  V.  Hapley,  120  Iowa  695,  95  N.  W.  205.  But  see,  School 
District,  &c.,  V.  Carson,  10  Kan.  238. 

2  First  Nat'l  Bk.  v.  Bourne,  131  S.  W.  (Mo.)  896. 

3  Glidden  v.  Hopkins,  47  111.  525. 

4  Clark  V.  School  Directors,  &c.,  78  111.  474. 

248 


Ch.  IX]  CERTIFICATES  OF  INDEBTEDNESS        [§111 

sideration.  Such  order  has  in  this  respect  none  of  the 
elements  of  commercial  paper,  and  a  school  district 
is  not  estopped,  even  as  against  a  bona  fide  holder  for 
value,  to  avail  itself  of  any  defense  which  it  would 
have  had  in  an  action  brought  by  the  payee. ^ 

School  warrants  do  not  possess  the  qualities  of  nego- 
tiable paper,  and  the  purchaser  takes  them  subject  to 
all  equities  existing  against  the  original  holder,  ^  and 
they  are  not  so  negotiable  that  they  are  governed 
by  the  law  of  bills  and  notes. ^  There  can  be  no  inno- 
cent holder  of  a  school  warrant  issued  contrary  to 
law."*  And  in  absence  of  statute  so  providing,  a  school 
warrant  does  not  bear  interest.^ 

In  an  action  brought  by  an  indorsee  of  a  school  order 
where  a  school  district  board  had  entered  into  a  con- 
tract for  the  erection  of  a  schoolhouse,  and  issued 
orders  in  payment  thereof  before  any  work  was  done, 
and  had  not  been  authorized  to  do  so  by  a  vote  of  the 
electors  of  the  district,  and  the  schoolhouse  was  not 

^  School  District  v.  Stough,  4  Neb.  357 ;  School  District  v.  Lom- 
bard, 2  Dill.  (U.  S.  C.  C.)  493;  Emery  z;.  Mariaville,  56  Me.  315; 
Smith  V.  Cheshire,  13  Gray  (Mass.)  318;  Axt  v.  Jackson,  &c.,  90 
Ind.  101 ;  Shakespear  v.  Smith,  77  Cal.  638,  20  Pac.  294 ;  Newell  v. 
School  Directors,  68  111.  514;  Boyd  v.  Mill  Creek,  &c.,  114  Ind.  210, 
16  N.  E.  511;  National,  &c.,  v.  Independent,  &c.,  39  Iowa  490; 
First  Nat'l  Bank  v.  Rush,  &c.,  81  Pa.  St.  307 ;  School  District,  &c., 
V.  Western,  &c.,  5  Wyo.  185,  38  Pac.  922. 

2  State  V.  Melcher,  87  Neb.  359,  127  N.  W.  241. 

3  Gray  v.  Board,  &c.,  231  111.  63,  83  N.  E.  95;  Davis  v.  Steuben, 
&c.,  19  Ind.  App.  694,  50  N.  E.  1 ;  Wright  v.  Kinney,  123  N.  C.  618, 
31  S.  E.  874 ;  Kellogg  v.  School  District,  &c.,  13  Okla.  285,  74  Pac. 
110;  Fine  v.  Stewart,  48  S.  W.  (Tenn.)  371.  But  see,  BlaisdeU  v. 
School  District,  &c.,  72  Vt.  63,  47  Atl.  173. 

4  First  Nat'l  Bk.  v.  Whisenhunt,  94  Ark.  583, 127  S.  W.  968. 

^  A.  H.  Andrews  Co.  v.  Delight,  &c.,  95  Ark.  26,  128  S.  W.  361. 

249 


§  111]  OF  SCHOOL  FUNDS  [Ch.  IX 

erected,  although  the  directors  had  secured  from  the 
contractor  a  bond  for  the  faithful  performance  of  the 
contract,  the  district  was  not  liable  on  such  orders 
thus  illegally  issued. 

A  school  board  has  no  authority  to  draw  orders 
except  on  funds  in  the  treasury,  held  for  the  purposes 
for  which  the  orders  are  drawn,  and  an  order  drawn 
on  a  fund  which  has  merely  been  proposed  by  vote  of 
the  district,  but  not  raised  by  taxation,  is  illegal. 
Credit  of  a  district  cannot  be  pledged  unless  authorized 
by  statute.^  And  the  statements,  acts,  conduct,  or 
promises  of  the  officers  of  a  school  district  cannot 
operate  to  estop  the  district  from  pleading  want  of 
authority,  or  of  consideration,  as  a  defense  to  a  suit 
on  a  certificate  of  indebtedness.^ 

A  school  order,  or  warrant,  regular  upon  its  face, 
is  prima  facie  binding  and  legal.  Its  apparent  validity 
may  be  impeached  by  showing  that  the  officers  were 
not  properly  authorized,  but  that  is  matter  of  defense.^ 

There  is  no  privity  of  contract  between  a  city  and 
the  holders  of  school  warrants  who  are  exclusively 
creditors  of  the  school  board,  the  school  directors 
not  being  the  same  corporate  body  as  the  city,  even 
though  the  geographical  limits  of  district  and  city 
are  identical.^ 

1  School  District  v.  Stough,  4  Neb.  357 ;  Kane  v.  School  District, 
&c.,  52  Wis.  502,  9  N.  W.  459. 

2  Axt  V.  Jackson,  &c.,  90  Ind.  101 ;  Goose  River,  &c.,  v.  Willow 
Lake,  &c.,  1  N.  D.  26,  44  N.  W.  1002. 

3  Meyer  v.  School  District,  &c.,  4  S.  D.  420,  57  N.  W.  68. 

*  Labatt  v.  New  Orleans,  38  La.  An.  289 ;  Fisher  v.  Board,  &c., 
44  La.  An.  184,  10  So.  494. 

250 


Ch.  IX]  APPORTIONMENT  OF  FUNDS  [§  112 

Where  an  oral  contract  is  made  for  goods,  the  issuance 
of  a  school  township  warrant  in  payment  therefor 
does  not  create  a  written  contract  into  which  the  oral 
contract  is  merged.^  Such  warrant  alone  creates 
no  hability  against  the  township,  and  to  sustain  an 
action  based  thereon,  it  must  be  shown  what  it 
was  given  for,  and  that  a  legal  liability  was  thereby 
created.^ 

School  warrants  need  not  bear  the  corporate  seal, 
it  being  sufficient  that  they  are  signed  by  the  president 
and  countersigned  by  the  clerk  of  the  board.^  And 
where  school  warrants  show  on  their  face  that  they  are 
obligations  of  the  district,  and  not  of  the  directors, 
although  illegally  issued,  they  do  not  make  the  direc- 
tors personally  liable.^ 

A  school  warrant  issued  in  violation  of  the  statute 
is  void.^  And  the  power  of  the  legislature  is  such 
that  it  may  provide  that  school  debts  may  be  paid  in 
bills  of  the  State  bank  of  the  State.® 

§  112.  Apportionment  of  Funds. 

The  making  of  an  estimate,  as  required  by  statute, 
of  the  proportion  of  the  general  school  fund  which 
may  be  distributed  during  the  then  current  year  among 
the  districts  of  the  county  which  shall  belong  to  each 
district,  does  not  by  the  mere  making  of  such  estimate 

1  Mitchelltree,  &c.,  v.  Carnahan,  42  Ind.  App.  473,  84  N.  E.  520. 

2  Ibid. 

3  Hopley  V.  Benton,  39  Okl.  223,  132  Pac.  808. 

4  First  Nat'l  Bk.  v.  Whisenhunt,  94  Ark.  583,  127  S.  W.  968. 

6  Rochford  v.  School  District,  &c.,  19  S.  D.  435,  103  N.  W.  763. 
«  Bush  V.  Shipman,  5  III.  190. 

251 


§  112]  OF   SCHOOL   FUNDS  [Ch.  IX 

vest  in  the  several  districts  the  ownership  of  their 
respective  shares.^ 

School  moneys  in  the  hands  of  the  commissioners  of 
common  schools  is  not  subject  to  control  by  the  superin- 
tendent of  those  schools,  therefore  when  no  appeal  or 
other  proceeding  is  pending  before  him  he  has  no 
authority  to  direct  the  commissioners  of  a  town  to 
retain  in  their  hands  subject  to  his  future  order  the 
money  about  to  be  apportioned  according  to  law  to  a 
school  district  for  a  teacher's  salary.^ 

A  County  Treasurer  may  question  the  right  of  a 
County  Superintendent  to  issue  an  order  apportioning 
school  funds  when  the  drawing  of  such  an  order  is 
merely  a  ministerial  act.^  But  a  State  Comptroller 
cannot  be  compelled  by  a  teacher  to  apportion  a  school 
as  required  by  law.^ 

Upon  the  division  of  a  school  district  into  separate 
school  districts,  the  school  fund  is  to  be  apportioned 
to  each,  based  on  school  enumeration.^  And  a  school 
district  formed  out  of  an  older  one  is  entitled  to  share 
pro  rata  in  the  State  appropriation  for  school  purposes 
for  the  current  year.^ 

Where  a  county,  in  pursuance  of  the  terms  of  a 
statute,  has  been  divided  into  school  districts,  and 
the  voters  have  authorized  the  levy  of  an  educational 
tax  to  supplement  the  State  funds,  the  apportionment 

1  Cooke  V.  School  District,  &c.,  12  Colo.  453,  21  Pac.  496,  719. 

2  Bennett  v.  Burch,  1  Denio  (N.  Y.)  141. 

3  School  District,  &c.,  v.  Lambert,  28  Oreg.  209,  42  Pac.  221. 

4  Yost  V.  Gaines,  78  Tenn.  576. 

5  Towle  V.  Brown,  110  Ind.  599,  10  N.  E.  628. 

^  Lower  Allen,  &c.,  v.  Shireraanstown,  &c.,  91  Pa.  St.  182. 

252 


Ch.  IX]  MISAPPLICATION  OF  FUNDS  [§  113 

of  the  fund  by  the  county  board  of  education  may  be 
made  on  the  basis  of  school  attendance.^ 

§  113.   Misapplication  of  Fimds. 

When  the  statute  prescribes  terms  upon  which 
school  directors  may  borrow  money  for  certain  enumer- 
ated purposes,  it  is  their  duty  to  pay  it  over  to  the 
treasurer  at  once,  he  being  the  only  proper  custodian 
of  such  funds,  and  if  they  place  the  funds  with  any 
other  person  it  is  at  their  own  risk.^  Such  payment  to 
one  not  authorized  to  receive  it  is  a  conversion,  for 
which  an  action  without  demand  may  be  brought 
against  one  making  such  illegal  payment.^  But  the 
improper  disbursement  of  funds  by  one  member  of  a 
school  board  who  is  acting  as  treasurer  does  not  make 
the  other  members  of  the  board  liable  unless  they 
participate  in  such  illegal  disbursement.^ 

A  member  of  a  school  corporation  has  a  right  to 
invoke  the  interference  of  a  court  of  equity  to  prac- 
tically coerce  a  reluctant  corporation  to  enforce  its 
legal  rights  against  its  officers  and  their  confederates, 
but  equitable  considerations  will  guide  or  control  in 
granting  or  withholding  relief.  The  court  will  not 
coerce  the  enforcement  of  a  strict  legal  right,  however 
clear,  if  thereby  injustice  and  inequity  will  be  done. 
Consequently,  when  the  plaintiff  and  all  other  tax- 
payers of  a  school  district  have  been  cognizant  of  the 

1  Webb  V.  Jackson,  141  Ga.  55,  80  S.  E.  274. 

2  Adams  v.  State,  82  111.  132. 

^  Knowlton  v.  Logansport,  75  Ind.  103. 
4  State  V.  Julian,  93  Ind.  292. 

253 


§  113]  OF   SCHOOL   FUNDS  [Ch.  IX 

manner  of  conducting  a  school  in  that  it  was  charac- 
terized by  sectarian  instruction,  and  that  the  electors 
of  the  district  had  been  informed  each  year  that  the 
public  school  fund  had  been  expended  for  that  pur- 
pose, and,  without  protest  from  any,  at  each  meeting 
directed  like  expenditures  for  the  ensuing  year,  and 
on  the  faith  of  such  acquiescence,  believing  that  the 
taxpayers  approved,  the  school  district  officers  parted 
with  the  money,  the  plaintiff  cannot  equitably  ask  that 
such  officers  be  compelled  to  repay  such  moneys  as 
were  so  expended.^ 

A  superintendent  may  be  enjoined  from  paying  any 
part  of  the  school  fund  to  teachers  in  a  private  school,^ 
even  if  directed  by  an  unconstitutional  act  of  the 
legislature.  And  teachers  in  a  public  school  who 
have  not  yet  finished  their  term  of  employment  may 
maintain  an  equitable  action  against  such  misap- 
plication of  the  fund  from  which  they  are  to  be 
paid.  The  legislature  has  no  power  to  divide  a  school 
fund  merely  because  the  public  school  building  is  not 
large  enough  to  accommodate  all  the  children  in  the 
district.^ 

If  a  County  Superintendent  wrongfully  pays  into 
the  State  treasury  moneys  of  the  school  fund  due  to  a 
person  under  a  contract,  he  becomes  personally  liable 
to  such  person  for  the  amount.^  And  if  money  be 
illegally  paid  by  the   State   authorities   to   a  school 

1  Dorner  v.  School  District,  137  Wis.  147,  118  N.  W.  353. 

2  Underwood  v.  Wood,  93  Ky.  177,  19  S.  W.  405. 

3  Ibid. 

4  Wilson  V.  Hite,  21  Ky.  L.  Rep.  1199,  54  S.  W.  726. 

254 


Ch.  IX]  LOANS  OF  FUNDS  [§  114 

board  not  entitled  to  it,  the  injured  school  board  to 
which  it  rightfully  belongs  may  recover  such  funds 
from  the  other  school  board.  And  even  if  such  funds 
have  been  invested  in  property  to  which  it  can  be 
traced  the  property  may  be  recovered.^ 

Misapplication  of  funds  by  school  directors,  as  in 
payment  of  a  teacher  for  services  during  a  period  when 
he  was  not  employed  in  the  service  of  the  district, 
makes  them  personally  liable  to  the  district  for  the 
misapplied  funds. ^  And  a  school  board  has  no  au- 
thority to  use  funds  for  any  purpose  other  than  that 
for  which  it  was  voted  by  the  electors  of  the  district.^ 
Nor  can  a  school  committee  vote  public  funds  for 
private  uses  no  matter  how  meritorious  may  be  the 
purpose.^ 

§  114.   Loans  of  Funds. 

A  loan  of  public  school  money  should  be  made  in 
the  manner  prescribed  by  law,  but  a  note  or  mortgage 
taken  for  such  loan  if  not  in  accordance  with  law  is 
not  thereby  invalid,^  although  it  is  such  a  misapplica- 
tion of  the  fund  that  it  will  make  the  trustees  per- 
sonally liable.^  And  if  the  statute  requires  that  loans 
from  the  school  fund  be  secured  by  a  mortgage  on 
unincumbered  real  estate,  a  mortgage  given  therefor 

^  East  Carroll  Parish,  &c.,  v.  Union  Parish,  &c.,  36  La.  An.  806. 

2  Dickinson  v.  Linn,  36  Pa.  St.  431. 

3  Drew  V.  Madison,  146  Iowa  721,  125  N.  W.  815. 

4  Wliittaker  v.  Salem,  216  Mass.  483,  104  N.  E.  359. 

5  Littlewort  v.  Davis,  50  Miss.  403 ;  Edwards  v.  Trustees,  30 
111.  App.  528;  Mann  v.  Best,  62  Mo.  491. 

^  Littlewort  v.  Davis,  50  Miss.  403. 

255 


§  115]  OF   SCHOOL   FUNDS  [Cn.  IX 

is  not  invalid  for  the  reason  that  the  land  was  incum- 
bered.^ The  recording  of  a  school  fund  mortgage  is 
not  necessary  to  give  notice  to  parties  claiming  through 
the  mortgagor,  2  when  the  statute  provides  that  mort- 
gages taken  for  loans  of  the  school  fund  shall  be  con- 
sidered to  be  of  record  from  the  date  thereof,  and 
shall  have  priority  over  all  mortgages  and  conveyances 
not  previously  recorded.^ 

A  State  cannot  be  guilty  of  laches  through  its  agent's 
neglect  in  the  management  of  school  funds,  therefore 
a  surety  for  a  loan  of  money  from  the  school  funds  can 
have  no  relief  in  a  claim  of  such  laches."^ 

The  statute  in  force  at  the  time  of  sale  of  land  mort- 
gaged to  secure  a  loan  from  school  funds,  governs  the 
sale  thereof.^ 

§  115.   Lack  of  Funds. 

If  a  school  trustee  finds  that  the  district  lacks  funds 
to  pay  a  legally  hired  teacher,  he  may  advance  the 
necessary  funds  and  look  to  the  corporation  for  reim- 
bursement.^ But  a  school  board  cannot  incur  any 
debt  to  be  paid  out  of  the  school  money  of  any  subse- 
quent year,^  and  a  court  of  equity  has  jurisdiction  of  a 
suit  by  and  on  behalf  of  a  resident  taxpayer  of  the 

1  Sharp's  Adm'r  v.  Collins,  74  Mo.  266 ;  Deming  v.  State,  23  Ind. 
416. 

2  Stockwell  V.  State,  101  Ind.  1 ;  West  v.  Wright,  98  Ind.  335. 

3  Mann  v.  State,  116  Ind.  383,  19  N.  E.  181. 

4  Ray  County  v.  Bentley,  49  Mo.  236. 

5  McPheeters  v.  Wright,  110  Ind.  519,  10  N.  E.  634. 

6  Kiefer  v.  Troy,  &c.,  102  Ind.  279,  1  N.  E.  560. 

7  Honaker  v.  Board,  &c.,  42  W.  Va.  170,  24  S.  E.  544. 

256 


Ch.  IX]  SCHOOL  BONDS  [§  116 

school  district  brought  to  set  aside  and  hold  for  naught 
such  contract  made  by  a  board  of  education.^ 

§  116.    School  Bonds. 

When  authorized  by  statute,  school  districts  may 
issue  bonds  for  such  purposes  as  are  authorized  by  the 
statute.^  And  it  has  been  held  that  the  power  to 
issue  bonds  is  implied  from  a  statute  authorizing 
school  districts  to  borrow  money,^  but  that  does  not 
seem  to  be  the  general  law.^ 

When  the  power  to  issue  school  bonds  is  given  by 
statute  it  is  usually  upon  condition  that  a  vote  of  the 
electors  of  the  district  is  necessary  to  authorize  the  issue 
and  define  the  purposes  therefor.^  And  if  the  meeting 
is  not  legally  called,  the  bonds  issued  in  pursuance  of  a 
vote  are  invalid  even  in  the  hands  of  a  bona  fide  pur- 
chaser for  value,  ^  unless  every  voter  of  the  district  is 
present  at  the  meeting.^    By  a  majority  vote  necessary 

1  Shinn  v.  Ripley,  &c.,  39  W.  Va.  497,  20  S.  E.  604 ;  Crampton 
V.  Zabriskie,  101  U.  S.  601,  25  L.  ed.  1070;  Dillon  Munic.  Corp., 
5th  ed.,  §  1579,  et  seq. 

2  Chamberlain  v.  Board,  &c.,  58  N.  J.  L.  347,  33  Atl.  923 ;  Sher- 
lock V.  Winnetka,  68  111.  530 ;  State  v.  Moore,  45  Neb.  12,  63  N.  W. 
1.30;  Erwin  v.  St.  Joseph,  &c.,  12  Fed.  680;  Board,  &c.,  v.  Welch, 
51  Kan.  792,  33  Pac.  654. 

3  State  V.  School  District,  13  Neb.  82.     - 

*  Ashuelot  National  Bank  v.  School  District,  56  Fed.  197 ;  Folsom 
V.  School  Directors,  &c.,  91  111.  402. 

6  People  V.  Caruthers,  &c.,  102  Cal.  184,  36  Pac.  396 ;  People  v. 
Sisson,  98  111.  335 ;  Board,  &c.,  v.  Moore,  17  Minn.  412 ;  Heard  v. 
Calhoun,  &c.,  45  Mo.  App.  660;  Richardson  v.  McReynolds,  114 
Mo.  641,  21  S.  W.  901 ;  State  v.  School  District,  &c.,  15  Mont.  133, 
38  Pac.  462 ;  Smith  v.  Proctor,  130  N.  Y.  319,  29  N.  E.  312. 

6  State  V.  School  District,  &c.,  10  Neb.  544,  7  N.  W.  315. 

'  State  V.  School  District,  &c.,  13  Neb.  466,  14  N.  W.  382. 

257 


§  116]  OF   SCHOOL  FUNDS  [Ch.  IX 

to  the  issue  of  bonds  is  meant  a  majority  of  those  vot- 
ing, and  not  a  majority  of  all  voters  present  at  a  meet- 
ing.^ If  a  school  bond  in  the  hands  of  an  innocent 
bona  fide  purchaser  recites  that  it  was  issued  according 
to  law  and  by  vote,  the  district  is  estopped  to  deny 
the  vote.^  But  if  it  recites  that  it  was  issued  for  a 
specific  purpose  as  authorized  by  statute,  and  the 
statute  does  not  so  authorize,  the  validity  may  be 
denied  by  the  district.^ 

A  purchaser  of  a  school  bond  is  charged  with  notice 
at  his  peril,  of  the  constitutional  limitations  on  the 
power  of  the  district  to  become  indebted.^  And  in  an 
action  on  a  school  bond  the  plaintiff  must  prove  that 
all  the  steps  necessary  to  confer  the  authority  to  issue 
have  been  taken,  whether  or  not  the  bond  recites 
that  these  steps  were  taken. ^ 

In  Kentucky  it  has  been  held  that  the  issuance  of 
school  bonds  in  excess  of  the  amount  allowed  by  law, 
if  otherwise  legal,  is  void  only  as  to  the  excess.^  But 
in  Missouri  it  has  been  held  that  where  a  school  dis- 
trict issues  bonds  in  excess  of  the  debt  limit  they  are 
wholly  void,  and  cannot  be  held  good  for  an  amount 
within  the  debt  limit. ^ 

1  Smith  V.  Proctor,  130  N.  Y.  319,  29  N.  E.  312. 

2  Bolton  V.  Board,  &c.,  1  111.  App.  193. 

3  State  V.  School  District,  &c.,  16  Neb.  182,  20  N.  W.  209. 

4  Halliday  v.  Hildebrandt,  97  Iowa  177,  66  N.  W.  89. 

5  Heard  v.  Calhoun,  &c.,  45  Mo.  App.  660. 

6  McKinney  v.  Board,  &c.,  144  Ky.  85,  137  S.  W.  839. 

'  Thornburgh  v.  School  District,  &c.,  175  Mo.  12,  75  S.  W.  81. 


258 


CHAPTER  X 

OF  SCHOOL  TAXES 

§  117.   Power  to  Levy. 

It  is  the  imperative  duty  of  the  State  to  bring  a 
sound  education  within  reach  of  all  the  inhabitants, 
and  the  extent  of  this  duty  is  a  question  of  pubUc 
poHcy,  not  for  the  courts,  but  for  the  people,  or  the 
legislature,  to  decide.^ 

If  the  legislature  prescribes  an  amount  that  towns 
are  compelled  to  provide  under  a  penalty  for  the  sup- 
port of  the  public  schools  such  provision  is  not  a 
definition  or  limit  of  the  public  schools  which  they 
have  authority  to  provide  for  by  taxation,  but  the 
provision  is  to  be  taken  in  connection  with  the  broader 
power  given  to  towns  to  grant  and  vote  money  as  they 
shall  judge  necessary  for  the  support  of  schools,  and 
also  with  the  whole  course  of  policy  and  of  legislation 
on  the  same  subject.  In  this  view  a  town  has  power 
to  raise  money  by  taxation  for  the  support  of  a  public 
school  designed  to  teach  higher  branches  than  is  pro- 
vided for  in  the  statutes.^ 

1  Com.  V.  Hartman,  17  Pa.  St.  118;  Powell  v.  Board,  &c.,  97  111. 
375 ;  Bellmeyer  v.  School  District,  44  Iowa  564. 

2  Cashing  v.  Newburyport,  10  Mete.  (Mass.)  508 ;  Bull  v.  Read, 
13  Grat.  (Va.)  78;  Landis  v.  School  District,  57  N.  J.  L.  509,  31 
Atl.  1017. 

259 


§  118]  OF   SCHOOL  TAXES  [Ch.  X 

A  school  district  may  levy  a  tax  only  when  clearly 
authorized  by  statute  to  do  so.  If  there  is  fair  doubt 
as  to  the  existence  of  the  right  it  must  be  denied.^ 
And  where  the  statute  repeals  all  laws  on  the  subject 
of  taxation,  "  except  those  enacted  for  municipal 
purposes",  it  does  not  repeal  an  act  providing  a  system 
of  taxation  for  such  schools,  inasmuch  as  it  is  enacted 
for  such  municipal  purposes.^ 

A  school  district  is  a  body  corporate,  upon  which 
certain  limited  powers  are  conferred  by  statute.  And 
the  legal  voters  within  limits  may  at  a  lawful  meeting 
raise  money  for  erecting  and  repairing  schoolhouses, 
and  for  purchasing  libraries,  school  apparatus,  fuel, 
furniture  and  other  articles  necessary  for  the  use  of 
schools,^  And  a  town  may  provide  town  schools  be- 
yond those  required  by  statute,  and  if  such  schools  are 
in  good  faith  for  the  common  and  general  benefit  of 
the  inhabitants,  the  town  may  levy  taxes  for  the  sup- 
port of  them.* 

§  118.   Meeting  to  Authorize  Levy. 

A  special  tax  for  school  purposes  can  only  be  levied 
after  the  question  has  been  submitted  to  the  qualified 
electors  of  the  school  district  in  the  manner  pointed 
out  by  the  statute.  And  in  an  action  to  recover  such 
taxes  it  is  not  sufficient  to  allege  in  general  terms  that 

1  Marion  M.  R.  Co.  v.  Alexander,  63  Kan.  72,  64  Pac.  978. 

2  Horton  v.  Mobile,  &c.,  43  Ala.  598 ;  Ballentine  v.  Pulaski,  83 
Tenn.  633;  State  v.  Bremond,  38  Tex.  116.  But  see,  Nelson  v. 
Homer,  48  La.  An.  258,  19  So.  271. 

3  Little  V.  Little,  131  Mass.  367. 

^  Cushing  V.  Newburyport,  10  Mete.  (Mass.)  508. 

260 


Ch.  X]  MEETING  TO  AUTHORIZE   LEVY  [§  118 

the  tax  was  duly  levied,  and  that  the  levy  and  all 
proceedings  prior  and  subsequent  thereto,  were  made 
and  had  under  and  in  pursuance  of  a  vote  and  election 
theretofor  had  and  held  by  the  qualified  electors  of 
the  district,  in  pursuance  of  law.  There  is  no  power 
to  levy  a  school  tax,  except  on  a  vote  of  the  electors, 
had  in  a  prescribed  method ;  and  the  holding  of 
such  an  election  is  a  jurisdictional  fact,  lying  at  the 
foundation  of  the  proceedings.  It  is  a  fact  on 
which  the  defendant  is  entitled  to  take  issue,  and  if 
denied  must  be  proved.  It  is,  therefore,  necessary 
to  aver  it  with  precision,  and  in  such  manner  as  to 
admit  of  a  direct  issue  upon  the  facts  averred.^  And 
in  an  action  to  collect  an  unpaid  school  tax  voted 
by  the  district,  where  the  defense  is  that  the  elec- 
tion was  void,  the  burden  of  so  proving  is  on  the 
taxpayer.  2 

Where  at  an  annual  meeting  of  a  school  district  a 
vote  to  levy  a  tax  has  been  decided  adversely,  a  special 
meeting  of  the  electors  of  the  school  district  may  be 
held  to  again  take  action  on  the  same  subject.^  And 
where  the  statute  provides  that  after  a  vote  to  levy 
no  school  tax,  no  election  for  that  purpose  shall  be 
ordered  until  after  the  expiration  of  one  year,  an  order 
for  an  election  within  the  year  is  valid  providing  the 
election  is  not  held  within  the  year.^ 


1  People  V.  Castro.  39  Cal.  65 ;  Com.  v.  Louisville,  &c.,  17  Ky.  L. 
Rep.  991,  33  S.  W.  204. 

2  Trustees,  &c.,  v.  Garvev,  80  Ky.  159. 

3  Stanton  v.  Board,  &c.,  70  N.  J.  L.  336,  57  Atl.  1133. 

4  Parks  V.  West,  108  S.  W.  (Tex.)  466. 

261 


§  119]  OF   SCHOOL   TAXES  [Ch.  X 

The  electors  of  a  school  district  are  not  entitled  to 
vote  on  the  question  of  rescinding  a  former  vote  that 
a  schoolhouse  tax  be  levied,  where  the  tax  has  been 
certified,  levied,  and  partly  paid.^ 

A  tax  voted  by  a  majority  of  the  electors  of  a  school 
district  is  not  made  void  by  a  mere  irregularity  in 
holding  the  election. ^  Such  statutes  as  prescribe  the 
method  of  ascertaining  the  will  of  the  people  in  matters 
pertaining  to  taxes  for  school  purposes,  should  be 
interpreted  with  great  liberality  in  view  of  the  great 
public  purposes  to  be  accomplished,  and  mere  irregulari- 
ties should  be  disregarded.^ 

§  119.   Purposes  of  Levy. 

A  school  tax  may  be  levied  only  for  educational  or 
building  purposes.^  And  if  a  tax  levy  is  void  for  failure 
to  specify  the  purposes  thereof,  a  valid  levy  may  be 
subsequently  made.^ 

A  tax  for  heating  and  repairing  purposes  is  a  tax 
for  school  or  educational  purposes,  and  not  for  building 
purposes.^  And  a  tax  levied  for  "  building  purposes  " 
to  pay  the  expenses  for  repairs,  grading  and  tiling 
around  a  schoolhouse  are  improper.  Such  expenses 
should  be  met  by  a  tax  for  "  school  purposes."^ 

In  laying  a  tax  for  a  school  district  a  general  state- 

1  Kirchner  v.  Board,  &c.,  141  Iowa  43,  118  N.  W.  51. 

2  Trustees,  &c.,  v.  Garvey,  80  Ky.  159. 

3  McNees  v.  McGill,  4  Ky.  L.  Rep.  632. 

4  St.  Louis,  &c.,  V.  People,  224  lU.  155,  79  N.  E.  664. 

6  Morrell,  &c.,  v.  Com.,  32  Ky.  L.  Rep.  1383,  108  S.  W.  926. 

6  Chicago  &  A.  R.  Co.  v.  People,  163  111.  616,  45  N.  E.  123 ; 
Wabash  R.  Co.  v.  People,  187  111.  289,  58  N.  E.  254. 

7  People  V.  Toledo,  &c.,  231  111.  514,  83  N.  E.  193. 

262 


Ch.  X]  PURPOSES  OF  LEVY  [§  119 

ment  of  the  purposes,  such  as  "  for  defraying  the  ex- 
penses of  the  district,  as  reported  by  our  committee  " 
is  sufficiently  specific,  and  the  particular  object  for 
which  the  tax  is  laid  need  not  be  specified.^ 

So  long  as  the  possession  of  land  purchased  for  school 
purposes  remains  in  the  possession  of  the  district,  the 
collection  of  a  tax  levied  for  the  purchase  thereof  can- 
not be  resisted  on  the  ground  that  the  title  to  the  land 
is  defective.^  And  a  tax  may  be  legally  voted  for  the 
construction  of  a  new  schoolhouse  before  the  site  is 
procured.^ 

A  constitutional  provision  that  "  All  moneys  raised 
by  taxation  in  the  towns  and  cities  for  the  support  of 
public  schools,  and  all  moneys  which  may  be  appropri- 
ated by  the  State  for  the  support  of  common  schools 
shall  be  applied  to,  and  expended  in,  no  other  schools 
than  those  which  are  conducted  according  to  law, 
under  the  order  and  superintendence  of  the  authorities 
of  the  town  or  city  in  which  the  money  is  to  be  ex- 
pended ",  means  the  town  or  city  in  which  the  school 
is,  where  tuition  is  given,  and  where  payment  for  it 
is  to  be  made,  rather  than  the  town  or  city  that  makes 
the  payment.* 

The  collection  of  a  legally  levied  school  tax  cannot 
be  enjoined  on  the  ground  that  it  is  proposed  to  apply 

1  West,  &c.,  V.  Merrills,  12  Conn.  437 ;  State  v.  Wolfrom,  25  Wis. 
468.     But  see,  State  v.  Cole,  51  N.  J.  L.  277,  18  Atl.  52. 

2  People  V.  Sisson,  98  111.  335. 

^  Williams  v.  Larkin,  3  Denio  (N.  Y.)  114;  Colton  v.  Beardsley, 
38  Barb.  (N.  Y.)  29;  Seaman  v.  Baughman,  82  Iowa  216,  47  N.  W. 
1091. 

^  Fiske  V.  Huntington,  179  Mass.  571,  61  N.  E.  260. 

263 


§  121]  OF   SCHOOL   TAXES  [Cn.  X 

the  tax  to  a  purpose  other  than  that  for  which  it  was 
levied.^ 

§  120.   Amount  of  Levy. 

The  vote  of  the  electors  of  a  district  authorizing 
the  levy  of  a  tax,  must  specify  a  definite  amount  to 
be  raised,  and  not  leave  that  to  be  determined  by  the 
trustees. 2  Where,  however,  the  amount  of  four  hun- 
dred dollars  was  voted  to  be  raised  by  tax  to  defray 
the  expenses  of  building  a  new  schoolhouse,  and  another 
vote  authorized  the  trustees  to  sell  the  old  school- 
house,  appropriate  the  avails  toward  the  erection  of 
the  new  building,  and  raise  the  balance  by  tax,  it  was 
held  that  no  discretionary  power  was  conferred  upon 
the  trustees  in  respect  to  the  amount  of  the  tax,  and 
that  they  were  authorized  to  collect  the  balance  of 
the  sum  specified  after  deducting  the  avails  of  the 
sale  of  the  old  schoolhouse.^ 

§  121.   Manner  of  Levying. 

The  manner  of  levying  taxes  for  school  purposes  is 
the  same,  and  on  the  same  species  of  property,  as 
those  for  town,  county,  and  State  purposes.  There- 
fore a  corporation  within  a  school  district  is  taxable 
to  the  full  amount  of  its  capital  stock  in  absence  of  a 
claim  for  reduction.^ 

1  Cleveland  C.  C.  &  St.  L.  Ry.  Co.  v.  People,  208  lU.  9,  69  N.  E. 
832. 

2  Robinson  v.  Dodge,  18  Johns.  (N.  Y.)  351.  But  see,  Adams  v. 
Hyde,  27  Vt.  221. 

3  Trumbull  v.  "White,  5  Hill  (N.  Y.)  46.  See  also,  Ackerman  v. 
Vail,  4  Denio  (N.  Y.)  297 ;  Myer  v.  Crispell,  28  Barb.  (N.  Y.)  54. 

4  Chadwick  v.  Crapsey,  35  N.  Y.  196 ;  Stephens  v.  School  Dis- 
trict, &c.,  6  Oreg.  353. 

264 


Ch.  X]  APPORTIONMENT  OF  TAXES  [§  122 

And  where  the  school  directors  are  authorized  to 
levy  a  tax  for  school  purposes,  they  may  levy  such 
tax  annually  although  the  statute  does  not  expressly 
so  provide.^ 

Where  the  statute  provides  for  the  levying  of  a  special 
tax  all  the  requirements  of  the  statute  in  regard  to  the 
making  of  such  levy  must  be  strictly  followed.^ 

§  122.   Apportionment  of  Taxes. 

The  principle  on  which  taxation  is  founded  is  that 
the  taxpayer  is  supposed  to  receive  just  compensation 
in  the  benefits  conferred  by  government,  and  in  the 
proper  application  of  the  tax,  and  that  in  the  exercise 
of  the  taxing  power  the  legislature  ought,  as  nearly  as 
practicable,  to  apportion  the  tax  according  to  the 
benefit  which  each  taxpayer  is  supposed  to  receive 
from  the  object  upon  which  the  tax  is  expended.  But 
the  power  of  apportionment  is  included  in  the  power 
to  impose  taxes,  and  is  vested  in  the  legislature ;  and 
in  the  absence  of  any  constitutional  restraint,  the 
exercise  by  it  of  such  power  of  apportionment  cannot 
be  reviewed  by  the  courts.^ 

The  constitutions  of  some  States  have  special  pro- 
visions designed  to  guard  against  an  inequitable  exer- 
cise of  the  power  of  apportionment  and  to  secure 
equality  in  the  distribution  of  the  public  burdens. 
Where  such  provisions  are  violated  they  are  cognizable 

1  Peay  v.  Talbot,  39  Tex.  335. 

^  Cooley  on  Taxation,  334 ;  Bramwell  v.  Guheen,  3  Idaho  347, 
29  Pac.  110. 

3  People  V.  Mayer,  &c.,  4  N.  Y.  419. 

265 


§  123]  OF   SCHOOL   TAXES  [Cn.  X 

by  the  courts.  In  New  York,  however,  the  legislature 
is  subject  to  no  such  restraints  and  therefore  may 
unrestrainedly  determine  how  such  taxes  shall  be 
apportioned.^ 

In  apportioning  taxation  for  educational  purposes, 
equality  of  distribution  must  be  the  aim  of  the  law, 
without  bestowing  special  favors  upon  privileged  classes. 
The  benefits  to  the  public  to  be  considered  as  a  whole 
as  received  in  taxation  are  direct  benefits.^  But  the 
benefits  may  not  be  direct  to  each  individual.  By 
taxation  we  may  receive  a  benefit  in  security  of  per- 
son, property,  reputation  or  other  social  benefits.  In 
school  taxation  the  taxpayer  may  not  receive  a  benefit 
in  the  instruction  of  his  own  children,  for  he  may 
have  none,  yet  he  receives  it  in  the  general  improve- 
ment of  the  intellectual  and  social  conditions  of  his 
neighborhood,  rendering  his  property  more  secure,  and 
in  the  form  of  advantages  in  doing  business  or  having 
labor  performed  more  intelligently. 

§  123.   What  Property  is  Taxable. 

The  assessment  of  taxes  for  school  purposes,  laid 
upon  real  estate,  must  be  confined  to  land  within  the 
school  district.^  And  where  a  parcel  of  land  on  which 
a  school  tax  is  levied  lies  partly  within  and  partly  with- 
out the  district,  the  entire  parcel  cannot  be  sold  for 
non-payment  of  the  taxes  levied  upon  it.^ 

1  Providence  Bank  v.  Billings,  4  Pet.  (U.  S.)  514,  7  L.  ed.  939 ; 
Brewster  v.  Syracuse,  19  N.  Y.  116 ;  Gordon  v.  Comes,  47  N.  Y.  608. 

2  Gordon  v.  Cornes,  47  N.  Y.  608. 

3  Saranac,  &c.,  v.  Roberts,  208  N.  Y.  288,  101  N.  E.  898. 

4  Shaw  V.  Lockett,  14  Colo.  App.  413,  60  Pac.  363. 

266 


Ch.  X]  WHAT  PROPERTY  IS  TAXABLE  [§  123 

A  school  district  tax  can  only  be  assessed  upon  the 
personal  property  which  is  lawfully  included  in  the 
valuation  of  the  town  as  belonging  to  its  inhabitants.^ 
And  where  the  statute  provides  that  "  every  inhabitant 
of  the  district  shall  be  taxed  in  the  district  in  which 
he  lives,  for  all  his  personal  estate  ",  these  words  are 
not  to  be  taken  literally,  as  all  his  personal  property 
of  every  kind  whatever,  but  are  to  be  construed 
with  reference  to  other  provisions  of  the  statutes,  as 
subject  to  all  lawful  exemptions,  and  as  including 
only  the  personal  estate  liable  to  be  taxed  for  mu- 
nicipal purposes  in  the  town  where  the  district  is 
situated.  2 

The  statutes  of  the  United  States  provide  that  the 
shares  of  stock  in  a  national  bank  may  be  included  in 
the  valuation  of  the  personal  property  of  the  owner 
in  assessing  taxes  imposed  by  the  State  within  which 
the  bank  is  situated ;  and  that  the  legislature  of  each 
State  may  determine  the  manner  and  place  of  taxing 
such  shares,  subject  only  to  the  restrictions  that  the 
taxation  shall  not  be  at  a  greater  rate  ^han  is  assessed 
upon  other  capital,  and  that  the  shares  of  non-residents 
shall  be  taxed  where  the  bank  is  situated.^  Where  the 
State  Legislature  has  provided  for  such  taxation  by 
enacting  that  such  stock  "  shall  be  assessed  to  the 
owners  thereof  in  the  cities  or  towns  where  such  banks 
are  located,  and  not  elsewhere,  in  the  assessment  of 
all  State,  county,  and  town  taxes  imposed  and  levied 

1  Little  V.  Little,  131  Mass.  367. 

^Ibid.;   Bates  v.  Weymouth,  9  Gray  (Mass.)  433. 

3  U.  S.  Rev.  Stats.  §  5219. 

267' 


§  124]  OF   SCHOOL   TAXES  [Ch.  X 

in  such  place  by  the  authority  of  law,  whether  such 
owner  is  a  resident  of  said  city  or  not  "  the  stock  of  a 
national  bank,  owned  by  an  inhabitant  of  a  school 
district  in  a  town  other  than  the  one  in  which  the  bank 
is  located,  cannot  be  taxed  to  assist  in  the  building  of 
a  schoolhouse  in  the  district  in  which  the  owner  of 
the  stock  hves,  the  bank  not  being  located  within  the 
same  district.^ 

General  statutes  upon  the  subject  of  taxing  property 
refer  to  private  property,  and  not  to  that  owned  by 
the  State,  nor  to  that  of  municipahties  held  for  pubhc 
use.2  But  the  State  if  it  sees  fit  may  subject  to  taxa- 
tion the  property  owned  by  its  municipal  divisions  in 
common  with  other  property.^ 

§  124.    Certificate  of  Levy. 

A  school  tax  must  be  based  on  a  lawful  certificate 
or  it  is  void.  And  accordingly  such  tax  is  void  if 
the  certificate  is  not  made  until  after  the  meeting  of 
the  board  at  which  the  tax  is  voted,  and  is  signed  by 
the  directors  at  different  times  and  places.^  But  it 
has  been  held  that  a  school  tax  levied  by  a  board  of 
education  is  not  made  invalid  by  the  fact  that  in  sign- 
ing the  certificates  thereof  the  board  attached  the 
word  "  Directors  "  to  their  names.  ^    And  a  certificate 

1  Little  V.  Little,  131  Mass.  367. 

2  Dillon  Munic.  Corp.,  5th  ed.,  §  1396. 

3  Trustees,  &c.,  v.  Trenton,  30  N.  J.  Eq.  667 ;  Matter  of  Hamil- 
ton, 148  N.  Y.  310,  42  N.  E.  717. 

4  St.  Louis,  &c.,  R.  Co.  V.  People,  177  111.  78,  52  N.  E.  364 ; 
Chicago,  &c.,  Ry.  Co.  v.  People,  184  111.  240,  56  N.  E.  367. 

5  Cairo,  &c.,  v.  Mathews,  152  111.  153,  38  N.  E.  623.  See  also, 
Chicago,  &c.,  v.  People,  155  lU.  276,  40  N.  E.  602. 

268 


Ch.  X]  ASSESSING  OF  TAXES  [§  125 

improperly   signed    may    be    amended    by    leave    of 
court. ^ 

But  if  the  purposes  for  which  a  tax  is  voted  are  not 
shown  in  the  vote  of  a  district  meeting,  the  trustees 
are  not  authorized  to  make  a  certificate  to  the  assessors. 
A  defective  certificate  cannot  be  held  to  be  a  mere 
irregularity.  That  paper  confers  upon  the  assessors 
an  authority  to  levy  the  taxes,  and  its  substantial 
correctness  is  essential  to  the  validity  of  the  assessment 
based  upon  it.- 

§  125.  Assessing  of  Taxes. 

Where  the  statute  does  not  provide  a  method  of 
valuation  it  is  proper  to  assess  upon  the  valuation  of 
property  taken  in  reference  to  the  town  taxes  for  the 
same  year.^  And  a  legitimate  method  of  assessing  an 
educational  tax  is  to  take  the  returns  of  the  county 
tax  receiver,  and  assess  the  percentage  named  by 
the  board  of  education  upon  the  property  therein 
returned.^ 

It  is  not  necessary  to  withhold  the  assessment  of  a 
tax  until  the  very  day  the  money  is  required  for  use, 
in  order  to  avoid  making  an  illegal  assessment  for 
future  expenses  which  are  unascertained,  even  though 
the  rule  exists  that  the  tax  shall  not  be  assessed  until 
the  money  is  required.     Such  taxes  may  be  assessed 

1  Spring  Valley,  &c.,  v.  People,  157  111.  543, 41  N.  E.  874 ;  Keokuk, 
&c.,  V.  People,  161  111.  132,  43  N.  E.  691. 

^  State  V.  Browning,  28  N.  J.  L.  556 ;  Cochran  v.  Garrabrant, 
32  N.  J.  L.  444 ;  Pond  v.  Negus,  3  Mass.  230. 

3  Waldron  v.  Lee,  5  Pick.  (IVIass.)  323 ;  Adams  v.  Hyde,  27  Vt.  221. 

*  Smith  V.  Bohler,  72  Ga.  546. 

269 


§  125]  OF   SCHOOL   TAXES  [Ch.  X 

long  enough  beforehand  to  have  the  money  at  hand 
when  needed.^ 

Where  the  statute  provides  that  the  board  of  educa- 
tion may  assess  upon  a  subdistrict  such  portion  of  the 
cost  of  a  new  schoolhouse  as  they  shall  deem  just, 
they  may  in  their  discretion  assess  upon  the  subdis- 
trict the  entire  cost  thereof.^ 

The  debt  of  a  school  tax  is  fixed  by  the  assessment. 
Therefore,  if  after  a  tax  has  been  voted  and  assessed 
on  the  inhabitants  of  a  school  district,  part  of  the 
district  is  set  off  into  another  district,  the  inhabitants 
of  the  set  off  part  remain  liable  to  pay  the  tax.^  But 
if  the  part  of  the  district  is  set  off  before  the  assess- 
ment, even  though  the  tax  had  theretofore  been  laid 
and  expenses  incurred  in  behalf  of  the  purpose  for 
which  it  was  assessed,  the  inhabitants  of  the  set  off 
part  are  not  subject  to  the  assessment.*  And  a  school 
tax  is  not  a  special  assessment.^ 

If  the  record  of  a  town  meeting  fails  to  show  that  a 
vote  to  re-establish  the  school  district  system  was  a 
"  two-thirds  vote  "  as  required  by  the  statute,  the 
vote  is  invalid,  and  if  not  so  announced  by  the  modera- 
tor no  subsequent  amendment  by  the  clerk  of  "the 
meeting  can  cure  the  defect.  The  clerk  of  a  town  is  a 
sworn  officer  having  custody  of  the  records,  and  is 
presumed  to  know  the  facts,  and  if  he  states  what  is 

1  Brock  V.  Bruce,  59  Vt.  313,  10  Atl.  93. 

2  Bryant  v.  Goodwin,  9  Ohio  471. 

3  Waklron  v.  Lee,  5  Pick.  (Mass.)  323 ;  Dyer  v.  School  District, 
61  Vt.  96,  17  Atl.  788. 

^  Jackman  v.  SaUsbury,  5  Gray  (Mass.)  413. 

6  Louisiana,  &c.,  v.  State  Board,  120  La.  471,  45  So.  394. 

270 


Ch.  X]  ASSESSING  OF  TAXES  [§  125 

not  true,  may  be  punished  for  fraudulent  conduct  in 
his  office.  But  he  cannot,  by  inserting  in  his  records 
any  statements  of  facts  or  opinions  which  are  not 
properly  matters  of  record,  make  such  statements 
evidence  for  or  against  the  town.  There  is  no  doubt, 
however,  that  a  clerk  having  continued  in  office,  has 
a  right  to  amend  his  record  by  adding  any  votes  or 
other  transactions  of  the  meeting  accidentally  omitted, 
and  which  are  properly  matters  of  record.^  But  he 
should  record  votes  only  as  declared  by  the  moderator, 
and  cannot  properly  insert  in  the  record  any  different 
declaration  founded  upon  his  private  count  or  judgment 
of  the  number  of  voters  upon  each  side. 

Consequently,  it  was  held  that  if  a  school  district 
was  not  established  according  to  law,  the  assessors  will 
be  liable  in  an  action  of  tort,  for  issuing  a  warrant  in 
the  collection  of  a  school  district  tax  assessed  by  them, 
although  one  acting  as  clerk  of  the  district  certified 
to  them  that  the  tax  had  been  voted  by  the  district.^ 

Where  the  statute  directs  the  assessors  to  assess  the 
tax  within  thirty  days  after  the  certificate,  and  does 
not  contain  negative  words  restraining  them  from 
making  the  assessment  after  that  period  has  elapsed, 
such  provision  is  directory  only  and  must  not  be  con- 
sidered as  a  limitation  on  their  authority,  and  they 
may  make  the  assessment  thereafter.  And  if  an 
assessment  and  warrant  are  illegal,  they  may  be  re- 
voked, and  a  new  warrant  issued  either  by  the  present 
board  of  assessors  or  their  successors  unless  the  statute 

^  Halleck  v.  Boylston,  117  Mass.  469. 
2  Judd  V.  Thompson,  125  Mass.  553. 

271 


§  126]  OF   SCHOOL  TAXES  [Ch.  X 

provides  that  the  assessment  must  be  made  by  the 
assessors  in  office  when  the  vote  was  passed,  and  for 
this  purpose  the  clerk  may  make  a  second  certificate.^ 
The  omission  of  assessors  to  tax  particular  property, 
through  misinformation,  mistake  of  fact,  or  error  of 
judgment  does  not  render  the  whole  tax  void.^  But  a 
school  tax  assessed  on  only  part  of  a  school  district  is  void.^ 
The  legislature  has  the  power  to  legalize  irregularities 
in  the  assessment  of  school  taxes.^ 

§  126.    Constitutionality  of  Levy. 

Although  the  scheme  of  taxation  of  district  schools 
differs  from  that  of  taxation  of  county  schools  within 
the  same  State,  it  is  not  a  violation  of  the  uniformity 
required  by  the  constitution.^ 

A  tax  law  should  contain  proper  and  requisite  pre- 
cautionary legal  sanctions  and  securities,  adjust  the 
amount  of  tax  to  the  necessities  of  the  district,  allow 
appeals  for  the  taxpayers  for  equalization  of  assess- 
ments, and  require  those  who  levy  the  tax  to  take 
oath  of  fidelity  and  give  bonds  for  the  faithful  per- 
formance of  their  duties.  And  a  tax  law  not  measuring 
up  to  these  qualifications  is  unconstitutional  and  void. 
No  tax  is  legal  which  is  not  for  some  necessary  or  at 
least  useful  purpose ;  no  tax  is  legal  where  the  amount 

1  Pond  V.  Negus,  3  Mass.  230 ;  Waters  v.  Daines,  4  Vt.  601  ; 
Johnson  v.  Dole,  3  N.  H.  328.  See  also,  Gates  v.  Beckwith,  2  Ohio 
Dec.  394. 

2  George  v.  School  District,  &c.,  6  Mete.  (Mass.)  497 ;  Merritt  v. 
Farris,  22  111.  303 ;  State  v.  Bremond,  38  Tex.  116. 

3  Auditor  General  v.  McArthur,  87  Mich.  457,  49  N.  W.  592. 

4  Schofield  v.  Watkins,  22  111.  66. 

6  Edalgo  V.  So.  Ry.  Co.,  129  Ga.  258,  58  S.  E.  846. 

272 


Ch.  X]  ILLEGAL  LEVY  [§  127 

arbitrarily  exceeds  the  purpose  of  its  creation ;  no 
tax  is  legal  which  is  not  equally  and  impartially  laid 
on  the  taxpayers ;  no  tax  is  legal  which  is  not  eco- 
nomical, honest,  and  responsible  in  its  administration  ; 
and  no  tax  law  is  valid  in  so  far  as  it  fails  to  secure 
these  conditions  to  the  taxpayer  in  particular  and  to 
the  public  in  general.^ 

Where  the  statute  authorizes  the  grant  of  power  of 
taxation  to  the  county  authorities  or  municipal  cor- 
porations it  may  be  given  to  a  county  board  of  educa- 
tion if  it  is  a  body  corporate.^  And  if  the  statute 
authorizes  a  school  tax  to  be  laid  by  a  vote  of  the 
majority  of  the  electors  of  a  district  it  is  not  uncon- 
stitutional as  a  delegation  of  the  legislative  power, 
even  though  citizens  not  residents  of  the  district  may 
thereby  be  taxed.^ 

A  local  tax  levied  to  provide  higher  grades  of  studies 
in  the  common  schools  than  would  be  afforded  by  the 
common  school  fund  alone,  is  not  for  that  reason  un- 
constitutional.^ And  a  tax  levied  under  an  unconstitu- 
tional act  and  voluntarily  paid  by  the  taxpayers,  gives 
a  county  no  vested  right  in  the  fund  created  thereby.  ° 

§  127.   Illegal  Levy. 

Where  the  school  trustees  illegally  levy  a  tax,  the 
collection  thereof  may  be  enjoined  by  the  taxpayers 

1  Kerr  v.  Wooley,  3  Utah  456,  24  Pac.  83L 

2  Smith  V.  Bohler,  72  Ga.  546 ;  Bull  v.  Read,  13  Grat.  (Va.)  78. 
But  see,  WUUs  v.  Owen,  43  Tex.  41. 

3  Steward  v.  Johnson,  3  Harr.  (Del.)  335 ;  Rose y.  Bath,  lOInd.  18. 

4  Smith  V.  Simmons,  33  Ky.  L.  Rep.  503,  110  S.  W.  336. 

5  School  District,  &c.,  v.  Cummg  County,  81  Neb.  606,  116  N.  W. 
522. 

273 


§  127]  OF   SCHOOL   TAXES  [Ch.  X 

from  whom  it  is  sought  to  be  coerced ;  and  the  fact 
that  such  tax  had  been  paid  for  two  years  without 
complaint  does  not  amount  to  an  estoppel.^  A  tax 
levied  to  pay  warrants  issued  in  excess  of  the  amount 
limited  by  the  constitution,  is  void.^  So  also  is  void 
a  tax  levied  on  property  outside  of  the  district.^ 

And  if  one  elected  sole  prudential  committee  of  a 
school  district  who  is  by  law  ineligible  to  that  office, 
as  for  the  reason  of  being  an  unnaturalized  foreigner, 
his  assessment  of  a  tax  voted  by  the  district  is  void, 
as  such  officer  cannot  be  considered  even  an  officer 
de  fado.^ 

A  levy  by  a  school  district  for  building  purposes, 
before  the  building  has  been  authorized  by  a  vote  of 
the  electors  of  the  district,  is  illegal.^  And  an  action 
cannot  be  maintained  against  a  school  district  for  the 
assessment  and  collection  of  an  illegal  school  tax  which 
was  voted  beyond  the  authority  of  its  corporate  powers. 
But  whoever  presumes  to  carry  into  effect  such  illegal 
vote  does  so  at  his  peril  unless  exempted  by  statute 
from  personal  habihty.*'  Although  property  or  money 
taken  under  such  illegal  assessment  may  be  recovered.^ 

1  Howard  v.  Trustees,  &c.,  31  Ky.  L.  Rep.  399,  102  S.  W. 
318 

2' People  V.  Toledo,  &c.,  229  111.  327,  82  N.  E.  420. 

3  Eakin  v.  Chapman,— Okla.—,  143  Pac.  21. 

4  Woodcock  V.  Bolster,  35  Vt.  632. 

5  St.  Louis,  &c.,  V.  People,  224  111.  155,  79  N.  E.  664. 

«  School  District  v.  Bailey,  12  Me.  254 ;  Trafton  v.  Alfred,  15 
Me.  258;  Powers  v.  Sanford,  39  Me.  183. 

^  Powers  V.  Sanford,  su-pra  cit.;  Starbird  v.  School  District,  &c., 
51  Me.  101 ;  Haines  v.  School  District,  &c.,  41  Me.  246 ;  Joyner  v. 
School  District,  &c.,  3  Cush.  (Mass.)  567 ;  Ellis  v.  School  District, 

274 


Ch.  X]  COLLECTION  OF  TAXES  [§  128 

§  128.    Collection  of  Taxes. 

If  the  warrant  issued  to  the  collector  of  taxes  shall 
be  lost,  it  may  be  supplied  by  a  new  one,  and  the 
right  and  power  of  the  collector  is  none  the  less  clear 
and  effective  than  if  the  old  one  were  still  in  existence 
and  produced.  Nor  is  the  authority  to  the  person  in 
office  at  the  time  of  its  issue  alone,  but  it  protects  his 
successor  in  office  as  well.  And  though  no  second 
warrant  should  issue,  yet  if  the  officer  can  show  that 
one  was  issued,  and  establish  its  loss,  he  may  protect 
himself  by  proving  its  contents.^  And  where  a  warrant 
is  signed  by  two  trustees  of  a  school  district  it  is  prima 
facie  vahd,  inasmuch  as  the  presence  of  the  third 
trustee  at  the  time  of  issuing  will  be  presumed.^ 

When  a  collector  of  a  school  district  sues  or  is  sued, 
and  justifies  his  acts  as  done  in  his  official  capacity, 
he  must  show  a  compliance  with  all  requirements  of 
the  law  necessary  to  constitute  him  a  legally  qualified 
officer,  —  that  is  an  officer  de  jure.  Therefore  where 
the  statute  provides  that  a  collector  who  is  elected  by 
the  district  to  fill  a  vacancy  in  that  office,  shall  be 
sworn  before  the  clerk  of  the  district  shall  deliver  to 
him  the  uncollected  tax  bills  of  his  predecessor,  it  is 
incumbent  upon  him  in  order  to  establish,  in  a  suit, 
his  right  to  receive  taxes  to  show  that  he  has  taken 
the  official  oath.^ 

11  Gray  (Mass.)  487;  Bacon  v.  School  District,  97  Mass.  421; 
People  V.  Wright,  34  Mich.  371 ;  Matteson  v.  Rosendale,  37  Wis. 
254. 

^  Higgins  V.  Reed,  8  Iowa  298. 

2  Doolittle  V.  Doolittle,  31  Barb.  (N.  Y.)  312. 

3  Houston  V.  Russell,  52  Vt.  110. 

275 


§  128]  OF   SCHOOL  TAXES  [Ch.  X 

A  collector  of  school  taxes  may  not  pay  over  the 
funds  in  his  hands  to  his  successor  in  office  without 
an  order  from  the  proper  authority.  If  he  does  so  the 
sureties  on  his  bond  are  liable.^  And  in  absence  of  a 
vote  of  the  district  authorizing  expenses  for  printing,  a 
tax  collector  has  no  authority  to  incur  such  expenses  for 
the  district. 2  Nor  can  he  recover  from  the  district  the  ex- 
penses of  a  bond  given  by  him,  but  not  required  by  law.^ 

If  a  collector  of  taxes  knowingly  sells  more  of  dis- 
trained property  than  is  necessary  to  satisfy  a  school 
district  tax  and  all  legal  charges,  he  is  Hable  in  tort 
to  the  owner  of  the  property  thus  sold  in  excess.** 

Where  school  district  trustees  wrongfully  collect 
taxes  on  property  unlawfully  taxed,  they  are  under 
an  implied  obligation  to  return  it,^  and  if  necessary 
the  district  should  vote  to  levy  a  tax  for  that  purpose.^ 

Mere  irregularities  in  the  procedure  of  levying  a 
tax,  by  officers  authorized  to  make  the  levy,  is  not 
sufficient  grounds  for  an  injunction  to  issue  restrain- 
ing the  collection  thereof.'^  Nor  is  it  necessary  to  the 
validity  of  a  vote  laying  a  school  tax,  that  the  time  of 
payment  be  specified,  inasmuch  as  the  tax,  being  legally 
imposed,  is  payable  on  demand  or  within  a  reasonable 
time.^ 


1  Board,  &c.,  v.  Cain,  28  W.  Va.  758. 

2  Wood  V.  School  District,  &c.,  28  R.  I.  299,  67  Atl.  65. 

3  Ibid. 

4  Cone  V.  Forest,  126  Mass.  97. 

5  Churchill  v.  Board,  &c.,  28  Ky.  L.  Rep.  162,  89  S.  W.  122. 

6  Rand  v.  Wilder,  11  Cush.  (Mass.)  294. 

'  Gray  v.  Board,  &c.,  231  111.  63,  83  N.  E.  95. 
8  Bartlett  v.  Kinsley,  15  Conn.  327. 

276 


Ch.  X]  EXEMPTION  FROM  TAXATION  (§  129 

School  orders  or  warrants  are  receivable  in  payment 
of  the  school  tax  of  the  district  in  which  they  are  issued, 
although  county  orders  are  not  so  receivable.  But 
school  orders  are  not  receivable  for  county  taxes.^ 

§  129.   Exemption  from  Taxation. 

School  property  in  common  with  other  property 
owned  by  a  municipahty  for  pubUc  purposes  is  not 
taxable  except  when  the  statute  so  provides.^  And 
although  a  special  assessment  is  not  taxation,  statutes 
exempting  public  schools  from  taxation  by  implica- 
tion exclude  such  assessments.^ 

In  determining  what  school  property  is  exempt  from 
taxation  under  exempting  statutes,  use  and  not  owner- 
ship governs.^  And  a  lot  and  building  used  for  school 
purposes,  but  incidentally  used  for  other  purposes  as  a 
lodging  and  boarding  house  is  not  exempt  from  taxation.^ 

Where  the  statute  provides  that  all  public  property  shall 
be  exempt  from  taxation,  a  public  school  fund  is  exempt." 

1  Wallis  V.  Smith,  29  Ark.  354. 

2  Dillon  on  Munic.  Corp.,  5th  ed.,  §  1396 ;  Board,  &c.,  v.  School 
District,  56  Ark.  354,  19  S.  W.  969 ;  Trustees,  &c.,  v.  Trenton,  30 
N.  J.  Eq.  667. 

^  Dillon  on  Munic.  Corp.,  5th  ed.,  §  1446 ;  St.  Louis,  &c.,  v. 
St.  Louis,  26  Mo.  468.  But  see,  Hartford  v.  School  District,  45  Conn. 
462 ;  Board,  &c.,  v.  School  District,  56  Ark.  354,  19  S.  W.  969 ; 
Toledo  V.  Board  of  Education,  48  Ohio  St.  83,  26  N.  E.  403 ;  Pitts- 
burg V.  Sterrett,  &c.,  204  Pa.  St.  635,  54  Atl.  463 ;  Witter  v.  Mission, 
&c.,  121  Cal.  350,  53  Pac.  905;  Sutton  v.  Montpelier,  28  Ind.  App. 
315,  62  N.  E.  710. 

*  Dillon  on  Munic.  Corp.,  5th  ed.,  §  1401 ;  Ft.  Smith,  &c.,  v. 
Howe,  02  Ark.  481,  37  S.  W.  717 ;  Chegary  v.  New  York  City,  13 
N.  Y.  220. 

5  Anniston  City  Land  Co.  v.  State,  185  Ala.  482,  64  So.  110. 

«  New  Orleans  v.  Salmen  Brick,  &c.,  Co.,  135  La.  828,  66  So.  237. 

277 


§  130]  OF   SCHOOL   TAXES  [Ch.  X 

A  public  schoolhouse  to  be  exempt  from  taxation 
must  be  under  the  immediate  control  of  the  school 
directors.^  By  ''public  schoolhouses ",  in  an  act  ex- 
empting from  taxation,  is  meant  such  schoolhouses 
as  belong  to  the  public  and  are  designed  for  schools 
established  and  conducted  under  public  authority.^ 

§  130.   Delinquent  Taxes.  —  Execution  and  Sale. 

Collectors  of  taxes  have  the  powers,  and  must 
proceed  generally  in  the  same  manner  to  collect,  as 
officers  having  executions.  They  are  bound  to  take 
property  in  preference  to  the  body  if  tendered ;  they 
are  bound  to  take  property  if  tendered,  even  after  a 
levy  on  the  person,  and  this  is  on  the  fundamental 
principle  of  law  that  personal  liberty  should  not  be 
unnecessarily  restrained.^  But  if  the  debtor,  for  whose 
benefit  the  rule  exists,  neglects  to  offer  property,  or 
refuses  to  dehver  it  when  demanded  on  the  declared 
ground  that  the  proceedings  are  illegal,  he  waives  the 
privilege  the  law  has  given  him  and  the  officer  is  ex- 
cusable if  he  levies  on  his  body.'* 

A  collector  of  school  taxes  after  a  demand  and 
refusal  to  pay  a  dehnquent  tax,  may  under  proper 
authority,  levy  upon  and  sell  the  property  of  the 
delinquent    taxpayer    in    satisfaction    thereof.^    And 

1  Pace  V.  Jefferson,  &c.,  20  111.  644. 

2  Gerke  v.  Purcell,  25  Ohio  St.  229 ;  Willard  v.  Pike,  59  Vt.  202, 
9  Atl.  907 ;  St.  Joseph's  Church  v.  Assessors,  &c.,  12  R.  I.  19. 

^  Voorhees  on  Arrest,  2d  ed.,  §  6. 

*  Allen  V.  Gleason,  4  Day  (Conn.)  376.  See  also,  Fulton  v. 
Jenks,  9  Pa.  Co.  Ct.  126. 

6  Gearhart  v.  Dixon,  1  Pa.  St.  224. 

278 


Ch.  X]  DELINQUENT  TAXES  [§  130 

where  the  statute  makes  it  the  duty  of  the  district 
collector  to  collect  the  tax  and  pay  it  over  to  the 
treasurer  or  his  successor  in  office,  payment  to  any 
other  person  is  invalid.  To  the  collector  is  delivered 
the  tax  bill  and  warrant  for  the  purpose  of  collection. 
He  gives  bonds  for  the  proper  performance  of  that 
duty,  if  a  bond  is  required,  and  must  collect  and  pay 
the  tax  to  the  treasurer  as  specified.  Failing  to  do 
this  he  may  be  sued  or  prosecuted  for  his  default. 
Therefore  he  may  levy  and  sell  property  of  the  delin- 
quent although  the  tax  has  been  previously  paid  to 
the  treasurer  of  the  district.^ 

The  validity  of  a  school  tax  is  not  so  affected  by 
failure  of  the  officers  who  called  the  meeting  to  take 
the  oath  prescribed  by  statute,  as  to  render  invalid  a 
sale  for  the  non-payment  of  such  taxes. ^ 

A  collector  of  school  taxes  by  a  levy  according  to 
law,  upon  property  for  the  payment  of  a  tax,  acquires 
a  special  property  therein,  upon  which  he  may  main- 
tain an  action  against  one  removing  it,  even  though 
the  collector  may  have  left  the  property  with  the 
owner  under  an  agreement.^  And  if  he  sell  property 
taken  upon  execution  in  any  manner  other  than  that 
authorized  by  statute,  he  becomes  a  trespasser,  and 
the  sale  is  void.'* 

1  Young  V.  King,  3  R.  I.  196. 

2  Brasch  v.  Western,  &c.,  80  Ark.  425,  97  S.  W.  445. 

3  HUliard  v.  Austin,  17  Barb.  (N.  Y.)  141. 

4  BedeU  v.  Barnes,  17  Hun  (N.  Y.)  353. 


279 


CHAPTER  XI 

SYNOPSES   OF  PRINCIPAL  STATUTES 

§  131.   General  Statement. 

To  be  better  enabled  to  understand  the  law  of  public 
schools  as  laid  down  in  the  judicial  decisions  of  the 
several  States  it  is  well  to  have  a  general  view  of  at 
least  the  more  important  statutes  of  the  jurisdiction 
whose  decisions  are  to  be  considered.  Herein  is  shown 
brief  synopses  of  the  statutes  of  the  several  jurisdic- 
tions, covering  the  more  important  points  of  statutory 
law  pertaining  to  public  schools,  compiled  from  the 
statutes  of  each  State.  Statutes  designed  to  promote 
education  are  to  receive  a  liberal  construction.^ 

The  terminology  used  in  the  designation  of  school 
districts  is  not  entirely  uniform.  The  term  '*  joint 
school  districts  "  usually  refers  to  those  districts  formed 
from  territory  lying  in  two  or  more  counties.^  Dis- 
tricts formed  from  two  or  more  townships  may  be 
termed  "  fractional  districts."  ^  The  larger  cities  or 
towns  usually  constitute  "  separate  "  or  "  indepen- 
dent "  ^  districts  into  which  two  or  more  districts  are 

1  Yale  V.  School  District,  59  Conn.  492,  22  Atl.  295. 

2  As  in  Idaho,  Kansas,  Minnesota,  Nevada,  and  Oklahoma. 
'  As  in  Michigan. 

*  As  in  North  Dakota,  South  Dakota,  and  Texas. 

280 


Ch.  XI]  ALABAMA  [§  132 

sometimes  consolidated,  and  may  be  governed  by  city 
charters  and  boards  of  education.^  Districts  are  usually 
''  consolidated  "  for  economic  reasons,  thereby  securing 
higher  grade  of  instruction,  or  dispensing  with  teachers 
for  very  few  pupils. 

As  used  herein,  "  School  Term  "  means  the  entire 
scholastic  year,  and  "  Separate  Schools  ",  unless  other- 
wise specified  means  separate  for  white  and  colored 
pupils. 

§  132.   Alabama. 

Board  of  Education  of  five  members  controls  in  some 
cities,  and  in  municipalities  where  there  is  none  the 
mayor  and  board  of  aldermen  perform  the  duties 
of  trustees.  Women  are  eligible  to  serve  on  such 
boards. 

Compulsory  Attendance  of  a  mild  type  will  be  required 
after  October  1,  1917,  of  children  between  eight  and 
fifteen,  at  least  eighty  days  during  each  scholastic  year ; 
but  boards  of  education  may  reduce  the  period  to  not 
less  than  sixty  days  for  any  individual  school.  Ex- 
ceptions are  made  of  those  who  have  completed  seven 
grades,  and  of  those  who  live  two  and  one-half  miles 
or  more  from  school,  where  transportation  is  not  pro- 
vided. It  is  further  provided  that  a  teacher,  with 
approval  of  the  attendance  officer  may  excuse  in  ex- 
treme cases  of  emergency  or  domestic  necessity.  Ex- 
ceptions are  also  made  of  those  mentally  or  physically 
incapacitated,  or  in  extreme  poverty.  Attendance  may 
be  at  a  private  or  parochial  school. 

^  As  in  California. 
281 


§  132]         SYNOPSES  OF  PRINCIPAL  STATUTES    [Ch.  XI 

County  Boards  of  Education  consist  of  County 
Superintendent  and  four  county  trustees  elected  by 
the  several  chairmen  of  district  trustees.  Select 
treasurer  of  school  funds  and  perform  other  duties. 
Women  are  eligible  to  serve  on  the  board. 

County  Superintendent  is  elected  in  each  county. 
Must  take  oath  and  give  bond.  Is  chief  executive 
officer  of  County  Board  of  Education. 

Districts  as  formerly  established  on  township  lines  are 
abolished  and  district  lines  may  be  changed,  or  new 
district  created  by  vote  of  the  County  Board  of  Educa- 
tion. Incorporated  cities  and  towns  are  separate 
school  districts.  A  district  may  lie  in  two  or  more 
counties. 

District  Trustees,  three  in  number,  are  elected  in  each 
district.  They  enumerate  children,  care  for  school 
property,  nominate  teachers  to  the  County  Board  of 
Education  who  make  the  contract,  visit  schools  and 
make  quarterly  reports  to  County  Superintendent. 

Employment  Certificates  may  be  issued  to  children 
under  sixteen,  but  such  children  shall  attend  school 
for  at  least  eight  weeks  in  each  year. 

School  Age  is  between  seven  and  twenty-one. 

Separate  Schools  are  provided,  and  it  is  unlawful 
to  unite  in  one  school  white  and  colored  children. 

State  Board  of  Examiners  composed  of  State  Superin- 
tendent and  two  others,  prepare  questions  for  county 
examinations  of  teachers. 

State  Superintendent  of  Education  exercises  general 
supervision  over  educational  interests  of  the  State. 
Reports  to  Governor. 

282 


Ch.  XI]  ARIZONA  [§  133 

Teachers  must  hold  certificates.  Render  monthly 
reports  pending  which  compensation  is  withheld.  Must 
be  at  least  seventeen. 

Text-Book  Cominission  consists  of  Governor,  State 
Superintendent,  and  nine  others,  one  from  each  con- 
gressional district.  They  select  and  adopt  a  uniform 
series  of  text-books  for  a  period  of  five  years.  Partisan 
or  sectarian  books  prohibited.  By  a  three-fourths 
vote  a  book  may  be  dropped  at  end  of  any  school  year 
during  the  continuance  of  the  contract,  and  another 
adopted.  Contracting  publisher  shall  give  bond  which 
shall  not  be  exhausted  by  a  single  recovery. 

§  133.  Arizona. 

Compulsory  Attendance  is  required  between  eight  and 
sixteen,  except  when  employed  between  fourteen  and 
sixteen  on  a  permit  issued  by  school  trustees,  or 
excused  by  trustees  as  receiving  competent  instruction 
at  home,  or  at  private  or  parochial  school,  or  for  mental 
or  physical  incapacity,  or  having  completed  grammar 
school  course,  or  for  other  satisfactory  reasons. 

Corporal  Punishment  is  permitted. 

County  Superintendent  apportions  money  to  districts  ; 
presides  over  teachers'  institutes ;  conducts  examina- 
tions of  teachers ;  appoints  trustees  of  school  districts  in 
case  of  vacancy. 

Districts  shall  be  named  by  number  and  county,  in 
which  name  the  trustees  may  sue  and  be  sued,  and  hold 
and  convey  property  for  the  district. 

Electors  may  be  either  sex  of  certain  qualifications 
who  are  parents  or  guardians  of  minor  children,  or  who 

283 


§  133]         SYNOPSES   OF  PRINCIPAL  STATUTES    [Ch.  XI 

have  paid  a  State  or  county  tax  other  than  poll,  road  or 
school  tax  during  the  preceding  year;  and  women 
whose  husbands  have  paid  such  tax  may  vote. 

Employment  .  Certificates  may  be  issued  to  those 
between  fourteen  and  sixteen. 

School  Term  is  six  months. 

School  Age  is  between  six  and  twenty-one. 

School  Trustees,  three  in  number,  prescribe  and 
enforce  rules,  manage  and  control  school  property, 
purchase  furniture  and  equipment,  expel  pupils  for 
cause,  exclude  from  primary  grades  those  under  six, 
and  exclude  sectarian  books. 

Separate  Schools  are  provided  by  district  trustees,  in 
which  pupils  of  the  African  race  are  segregated  from 
those  of  the  white  race. 

State  Board  of  Education  consists  of  Governor,  State 
Superintendent  of  Public  Instruction,  president  of 
University,  principals  of  normal  schools  ex  officio,  a 
city  Superintendent  of  Schools,  a  principal  of  a  high 
school,  and  a  County  Superintendent,  to  be  appointed 
by  the  Governor.  State  Superintendent  acts  as 
secretary. 

State  Board  of  Examiners  consists  of  Superintendent 
of  Public  Instruction  and  two  persons  appointed  by 
him.  Adopt  rules  and  regulations  to  govern  examina- 
tion of  teachers  for  certificates,  prepare  questions  and 
forward  them  to  county  superintendents. 

State  Superintendent  of  Public  Instruction  superin- 
tends the  public  schools  at  an  annual  salary  of  three 
thousand  dollars,  and  actual  expenses  not  to  exceed 
one  thousand  dollars  annually. 

284 


Ch.  XII  ARKANSAS  [§  134 

Teachers  must  hold  certificates  and  present  them  to 
the  County  Superintendent  before  assuming  charge 
of  a  school.  They  are  of  five  classes :  second  grade, 
primary,  first  grade,  hfe,  and  special.  Must  attend 
teachers'  institute  called  by  County  Superintendent  not 
more  than  once  each  year.  Suspend  pupils  for  cause. 
Keep  register.  When  dismissed  may  appeal  to  County 
Superintendent.  Pension  of  six  hundred  dollars  annu- 
ally is  paid  after  twenty-five  years  service. 

Text-Books  shall  be  uniform  and  not  changed  during 
five  years  from  adoption,  and  not  more  than  one  in 
any  grade  in  one  year.  Certain  books  are  loaned 
free  to  pupils  or  they  may  purchase  them  at  cost. 
Publishers  furnishing  books  on  contract  shall  give 
bond. 

Transportation  may  be  furnished  by  vote  of  district, 
to  children  living  a  greater  distance  than  one  mile 
from  school. 

§  134.  Arkansas. 

Compulsory  Attendance  is  required  between  eight 
and  sixteen  at  some  day  school,  public,  private, 
parochial  or  parish,  at  least  one-half  of  the  entire  time 
the  public  school  is  in  session.  Regular  daily  instruc- 
tion at  home  may  be  substituted.  Children  between 
sixteen  and  twenty  likewise  must  attend  unless  regu- 
larly and  lawfully  employed.  Excused  for  extreme 
destitution,  mental  or  physical  incapacity,  living 
two  and  one-half  miles  from  school,  or  when  labor  is 
necessary  to  support  of  family,  or  when  having  finished 
seven  grades. 

285 


§  134]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

County  Examiners  grant  licenses  to  teachers  upon 
examination. 

County  Superintendent  may  be  elected  in  any  county, 
and  where  so  elected  shall  as  County  Examiner  hold 
quarterly  examinations  of  applicants  for  teachers' 
licenses,  using  questions  furnished  by  State  Superin- 
tendent.    Must  hold  a  five-days'  institute. 

Districts  may  be  consolidated  and  may  exist  in  two 
or  more  counties.     They  are  bodies  corporate. 

School  Age  is  between  six  and  twenty-one.  Older 
persons  may  be  permitted  to  attend. 

School  Directors,  three  in  number  for  each  district,  are 
elected.  Consolidated  districts  have  six.  They  make 
provisions  for  separate  schools  for  white  and  colored 
children ;  promote  interests  of  education ;  care  for 
school  property  ;  hire  teachers  who  are  licensed,  making 
the  contract  in  duplicate.  May  suspend  pupils,  but 
not  beyond  current  term. 

State  Board  of  Education  composed  of  State  Superin- 
tendent and  one  member  from  each  congressional  dis- 
trict appointed  by  Governor.  Have  management  of 
school  funds.  Grant  charters  to  institutions  of  learn- 
ing, have  supervision  of  the  public  schools. 

State  Superintendent  under  supervision  of  State 
Board  may  issue  teachers'  licenses  based  upon  teachers' 
certificates  of  other  States. 

Teachers  must  have  license  when  school  begins, 
granted  by  State  Superintendent  or  County  Examiner, 
and  are  required  to  render  monthly  reports  to  County 
Superintendent,  pending  which  the  last  month's  salary 
is  retained.     Are  required  to  attend  institutes.   Must 

286 


Ch.  XI]  CALIFORNIA  [§  135 

not  be  related  to  school  directors,  unless  petitioned  by 
two-thirds  of  patrons  of  school.  Directors  may  be 
enjoined  from  entering  into  such  contract  with  third 
cousin  of  a  director.^  Shall  not  permit  use  of  sectarian 
books. 

Text-Books  for  destitute  children  may  be  paid  for 
out  of  school  funds.  Uniformity  in  counties  may  be 
voted  by  electors  of  districts.  As  adopted  by  school 
directors  cannot  be  changed  in  three  years  unless 
upon  petition  of  electors. 

Truancy  is  guarded  against  by  attendance  officers 
who  have  power  to  arrest  truants  without  warrant  and 
place  them  in  school. 

§  135.   California. 

Boards  of  Education  are  elected  in  cities.  Powers 
and  duties  are  same  as  school  trustees,  (q.v.). 

City  Boards  of  Examination  consisting  of  city,  or  city 
and  county.  Superintendent  and  four  other  members. 
Examine  applicants  for  elementary  school  certificates 
good  in  city  or  county. 

Compulsory  Attendance  between  eight  and  fifteen. 
Excused  for  mental  or  physical  incapacity,  or  where 
receiving  competent  instruction  at  home  or  elsewhere, 
or  between  fourteen  and  fifteen  if  holding  employment 
certificate,  or  where  no  public  school  is  located  within 
two  miles,  or  having  completed  required  course. 

County  Board  of  Education  consisting  of  County 
Superintendent  and  four  other  members  appointed  by 

1  See  Holt  v.  Watson,  71  Ark.  90,  71  S.  W.  262. 

287 


§  135]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

county  supervisors.  Examine  applicants  for  teachers' 
certificates ;  issue  diplomas  to  graduates ;  adopt  books 
and  apparatus. 

County  Superintendent  superintends  schools  of  the 
county.  Apportions  school  money  to  each  district. 
For  failing  to  visit  a  school  at  least  once  each  year  ten 
dollars  is  deducted  from  his  salary.  Presides  over 
teachers'  institute  held  in  his  county.  Issues  tem- 
porary teachers'  certificates.  Must  keep  record  of  his 
acts.  Approves  or  rejects  plans  of  schoolhouses  ex- 
cept in  cities  having  a  Board  of  Education. 

Districts  must  be  designated  by  names  without  use 
of  numbers,  and  in  that  name  trustees  may  sue  and 
be  sued.  All  school  districts  are  declared  incorporated. 
May  be  governed  by  city  charter  and  Board  of  Educa- 
tion. 

Employment  Certificates  may  be  issued  to  a  child  of 
fourteen  who  has  completed  grammar  school  course,  or 
where  family  needs  the  earnings.  Between  twelve 
and  fourteen  may  work  on  vacation  certificate. 

Evening  Schools  shall  be  open  to  all  over  fourteen  and 
to  adults,  also  to  children  under  fourteen  holding  em- 
ployment certificate. 

Hazing  is  a  misdemeanor. 

Parental  Schools  may  be  established  for  children 
between  eight  and  fifteen  who  are  habitual  truants,  or 
are  insubordinate  and  disorderly,  or  irregular  in  attend- 
ance. 

School  Age  is  six  to  twenty-one,  and  adults  are  ad- 
mitted on  vote  of  board.  Admitted  in  kindergartens 
at  four,  and  in  deaf  school  at  three  years. 

288 


Ch.  XI]  CALIFORNIA  [§  135 

School  Term  is  six  months. 

School  Trustees  consisting  of  three  members  are 
elected  by  ballot  in  each  common  school  district,  but 
are  appointed  by  County  Superintendent  in  case  of 
vacancy.  No  person  is  inehgible  on  account  of  sex. 
Powers  and  duties  mainly  are :  To  prescribe  and  enforce 
rules ;  manage  and  control  school  property ;  pay  all 
monej^s  collected  into  the  county  treasury;  purchase 
school  furniture,  including  organs  and  pianos;  grant 
use  of  school  buildings  for  public,  literary,  scientific, 
recreational  or  educational  meetings,  or  for  discussion 
of  matters  of  general  interest,  provided  such  use  does  not 
interfere  with  school  use,  and  no  grant  is  for  longer 
term  than  one  year,  and  then  revocable  by  grantors; 
upon  vote  of  district,  build  schoolhouses,  purchase  or 
sell  school  lots ;  employ  principal  for  each  school ; 
employ  teachers,  janitors  and  other  employees ;  sus- 
pend or  expel  pupils ;  exclude  sectarian  publications. 
The  district  attorney  is  legal  adviser  to  school  officers. 

Secret  Societies  are  prohibited,  with  certain  excep- 
tions. 

Separate  Schools  may  be  established  for  Indian  chil- 
dren and  those  of  Chinese  or  Mongolian  descent,  and 
when  established  such  children  must  not  be  admitted 
into  any  other  school. 

State  Board  of  Education  of  seven  members  appointed 
by  Governor.  State  Superintendent  of  Public  Instruc- 
tion is  secretary  and  executive  officer  of  the  board.  The 
Board  determines  all  questions  of  policy,  which  are  to 
be  executed  by  the  Superintendent.  Principal  powers 
and  duties  are :    To  adopt  rules  and  regulations  to 

289 


§135]  SYNOPSES   OF   PRINCIPAL   STATUTES     [Ch.  XI 

govern  itself,  subordinates  and  schools ;  appoint  three 
assistant  superintendents  of  public  instruction  to  be 
known  as  (1)  commissioner  of  elementary  schools, 
(2)  commissioner  of  secondary  schools,  (3)  commissioner 
of  industrial  and  vocational  education;  grant  life 
diplomas  to  certain  qualified  teachers,  and  revoke 
them  for  cause ;  com^pile  and  manufacture  text-books, 
or  contract  for  them,  and  enforce  uniform  use  of  them. 

State  Superintendent  of  Public  Instruction  superin- 
tends the  schools  of  the  State.  Reports  to  Governor. 
Apportions  school  fund.  Visits  schools  with  traveling 
expenses  not  to  exceed  eighteen  hundred  dollars 
annually.  Has  power  to  annually  call  a  convention  of 
city  and  county  Superintendents. 

Teachers  are  benefited  by  a  retirement  fund  open  to 
teachers  who  have  served  thirty  years,  fifteen  of  which 
in  this  State,  ten  of  which  immediately  precede  retire- 
ment. Amount  of  retirement  salary  is  five  hundred 
dollars  annually.  Must  hold  certificates.  May  sus- 
pend pupils.  Must  keep  a  school  register.  Must  be 
at  least  eighteen  years  of  age. 

Text- Books  of  uniformity  for  elementary  schools  are 
made  by  the  State,^  at  the  State  printing  office,  and 
furnished  free  of  charge  to  the  pupils.  This  is  a  con- 
stitutional provision. 

Transportation  may  be  provided. 

Truancy  is  guarded  against  by  attendance  officer 
who  may  be  appointed  by  local  board,  with  assistants. 
They,  or  any  peace  officer,  or  school  officer,  may  arrest 

^  See  also  Kansas. 
290 


Ch.  XI]  COLORADO  [§  13G 

during  school  hours,  without  warrant,  any  child 
between  eight  and  fifteen,  found  away  from  home  and 
reported  by  a  school  authority  as  a  truant,  and  deliver 
such  child  to  his  parent,  guardian  or  teacher. 

Vaccination  certificates  must  be  filed  with  person  in 
charge  of  school,  except  that  parent  or  guardian  op- 
posed may  file  a  statement  in  place  of  certificate. 
When  smallpox  is  present  all  unvaccinated  children 
shall  be  excluded. 

§  136.   Colorado. 

Compulsory  Attendance  of  children  in  all  school  dis- 
tricts between  eight  and  sixteen  at  a  public,  private  or 
parochial  school  for  entire  public  school  yearly  session. 
Exceptions  are  those  over  fourteen  who  have  com- 
pleted eighth  grade,  or  whose  help  is  necessary  to  sup- 
port of  itself  or  parent,  or  for  good  cause  shown.  Suffi- 
cient instruction  at  home  may  be  substitute. 

County  Superintendents  are  elected  in  each  county 
for  two  years.  Have  supervision  over  schools  in 
county.  Examine  accounts  of  district  officers.  Re- 
port to  State  Superintendent.  Administer  oaths  to 
school  officials.  Fill  vacancies  in  boards  of  school 
directors.  Appeal  lies  from  their  decisions  to  State 
Board  of  Education. 

Hazing  is  prohibited  as  misdemeanor  punishable  by 
fine. 

Pupils  residing  remotely  from  a  school  may  attend 
nearer  in  another  district  if  sufficient  room. 

School  Age  is  between  six  and  twenty-one.  Adults 
may  be  admitted. 

291 


§  136]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

School  Directors  five  in  number  in  larger  districts,  and 
three  in  smaller  districts  are  elected.  They  employ 
and  discharge  teachers,  mechanics  and  laborers ;  fix 
course  of  study,  exercises  and  kind  of  text-books  to  be 
used ;  enforce  rules  and  regulations  of  State  Superin- 
tendent ;  supply  school  furniture ;  suspend  and  expel 
pupils  for  cause ;  furnish  free  books  to  indigent  children. 
Appeal  lies  from  their  decision  to  County  Superin- 
tendent. 

School  Districts  are  bodies  corporate.  May  exercise 
eminent  domain. 

School  Term  not  less  than  six  months,  except  that  for 
climatic  reasons  in  altitude  of  eight  thousand  or  more 
feet  the  term  may  be  not  less  than  four  months. 

Secret  Societies  except  such  as  are  sanctioned  by  school 
directors  are  prohibited,  and  pupils  may  be  suspended, 
dismissed,  or  restricted  for  violation. 

State  Board  of  Education  composed  of  the  Superin- 
tendent of  Public  Instruction  as  president,  Secretary 
of  State,  and  Attorney  General,  who  grant  State  di- 
plomas to  teachers  who  have  taught  two  years,  thus 
superseding  the  necessity  of  examinations.  They  shall 
not  prescribe  text-books.^ 

State  Board  of  Examiners  composed  of  State  Superin- 
tendent as  president,  and  eight  others  appointed  by 
State  Board  of  Education,  examine  applicants  for  State 
diplomas,  and  issue  without  examination  to  graduates 
of  certain  State  colleges,  and  to  those  who  have  taught 
for  certain  periods. 

1  Const.  Art.  9.  sec.  16. 
292 


Ch.  XI]  CONNECTICUT  [§  137 

State  Superintendent  is  elected  at  State  election  for 
two  years.  Decides  all  points  of  construction  of 
school  law,  subject  to  appeal  to  courts.  Prepares 
questions  for  County  Superintendents.  Has  general 
supervision  of  County  Superintendents  and  all  public 
schools. 

Teachers^  minimum  salary  is  fifty  dollars  a  month. 
Must  have  license  before  commencing  to  teach.  Keep 
daily  registers,  and  last  month's  salary  is  withheld  pend- 
ing filing  thereof  with  secretary  of  district  at  close  of 
term. 

Transportation  is  furnished  to  pupils  living  one  mile  or 
more  from  consolidated  schools. 

Truant  Officers  may  be  appointed  in  certain  districts. 
They  notify  parent  or  guardian  of  truancy,  and  the 
parent  or  guardian  is  proceeded  against  for  allowing 
the  truancy  if  continued. 

Text-Books  shall  be  uniform  in  each  district,  and  not 
changed  in  four  years  unless  price  is  advanced,  quality 
lowered,  or  supply  stopped.  Free  to  pupils  when  so 
voted  by  district. 

§  137.    Connecticut. 

Compulsory  Attendance  from  seven  to  sixteen  unless 
child  is  elsewhere  receiving  regularly,  thorough  in- 
struction during  school  hours  and  terms  in  the  same 
studies  in  private  school  where  a  register  is  kept.  May 
be  subject  to  transportation  being  furnished  in  extreme 
cases. 

Districts  are  corporations.  No  State  aid  unless 
schoolhouse  is  provided.     By  two-thirds  vote  of  those 

293 


§  137]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

present  at  legal  district  meeting  may  allow  school- 
house  to  be  used  for  other  purposes  when  not  in  use 
for  school  purposes. 

Electors  include  registered  women  who  are  entitled 
to  vote  at  election  of  school  officers,  or  upon  any 
matter  relating  to  education,  to  schools,  or  to  public 
libraries. 

Employment  of  Children  over  fourteen  and  under 
sixteen  permitted  on  certificate. 

Evening  Schools  must  be  maintained  in  towns  or 
districts  of  ten  thousand  or  more  inhabitants.  Open 
to  those  over  fourteen.  Smaller  towns  may  maintain 
evening  schools. 

School  Age  is  compulsory  from  seven  to  sixteen, 
without  discrimination  on  account  of  race  or  color,  but 
between  fourteen  and  sixteen  may  be  lawfully  employed 
at  home  or  elsewhere  if  schooling  is  sufficient.  Chil- 
dren from  five  to  seven  are  permitted  to  attend,  and 
over  four  on  vote  of  committee  may  attend.  Towns 
or  districts  may  establish  kindergartens  open  to  chil- 
dren over  three. 

School  Committee  of  the  town,  or  school  visitors,  pre- 
scribe rules,  also  text-books  (subject  to  control  of  State 
Board  of  Education),  and  approve  plans  for  school- 
houses. 

School  Officers  are  not  disqualified  by  reason  of  sex. 

School  Terms  are  for  at  least  thirty-six  weeks. 

State  Board  of  Education  of  seven  members,  of  which 
three  are  a  quorum,  has  general  supervision  and  control. 
May  direct  books  to  be  used,  not  to  be  changed  within 
five  years.     Shall  prescribe  forms  of  registers.     Shall 

294 


Ch.  XI]  CONNECTICUT  [§  137 

hold  meetings  of  teachers  and  school  officers  for  pur- 
poses of  instruction  with  expenses  not  to  exceed  four 
thousand  dollars  annually.  Shall  report  annually  to 
the  Governor. 

Teachers  are  employed  by  school  visitors,  or  school 
committees  under  direction  of  towns,  and  by  boards 
of  education.     Certificate  is  necessary. 

Text-Books  and  other  supplies  may  be  provided  by 
towns  and  loaned  to  pupils  free  of  charge,  and  electors 
shall  upon  petition  of  twenty  legal  voters  decide  whether 
free  text-books  shall  be  supplied.  Indigent  pupils 
are  to  be  supplied  free. 

Town  Management  school  committee  has  powers  of 
district  committees  and  board  of  school  visitors. 
Shall  maintain  good  common  schools  of  the  different 
grades.  Shall  appoint  chairman  and  secretary.  Shall 
appoint  one  or  more  school  visitors  or  a  Superintendent 
to  exercise  supervision.  Shall  have  care  and  manage- 
ment of  property.  Shall  determine  number  and  quali- 
fications of  pupils  to  be  admitted.  Shall  employ 
teachers  for  no  longer  period  than  one  year.  Shall 
designate  schools  to  be  attended,  and  provide  for  all 
qualified  children  of  school  age.  May  provide  for  trans- 
portation ;  and  arrange  with  committee  of  adjoining 
towns  for  instruction  therein  when  more  convenient. 
Shall  report  in  detail  to  annual  town  meeting. 

Trade  Schools  may  be  established  for  instruction  in 
distinct  trades,  useful  occupations,  and  avocations. 

Truancy  is  governed  by  local  regulations,  and  where 
so  governed  each  town  or  city  must  appoint  three  or 
more  attendance  officers.     Male  truants  may  be  ar- 

295 


§  138]         SYNOPSES  OF  PRINCIPAL  STATUTES    [Ch.  XI 

rested.  Female  truants  may  be  arrested  on  warrants 
issued  upon  request  of  parent  or  guardian. 

Vacation  Certificates  shall  be  granted  to  physically 
fit  children  between  fourteen  and  sixteen,  permitting 
employment  during  vacation. 

Vaccination  may  be  required  before  a  child  is  per- 
mitted to  attend  school. 

Vocational  Guidance  is  subject  to  local  control,  and  a 
local  vocational  counsellor  may  be  employed. 

§  138.   Delaware. 

Compulsory  Attendance  is  required  of  children  be- 
tween seven  and  fourteen  at  least  five  months  annually, 
unless  reduced  to  three  months  by  vote  of  district.  If 
nearest  school  is  two  miles  distant  the  law  does  not 
operate  unless  a  conveyance  is  provided.  Private 
school,  tutor,  or  other  instruction  may  be  substituted 
upon  approval  by  County  Superintendent.  Attend- 
ance may  be  excused  by  school  committee  and  County 
Superintendent  for  urgent  reasons. 

Commissioner  of  Education  appointed  by  Governor  at 
annual  salary  of  two  thousand  dollars.  His  duties  are 
prescribed  by  the  State  Board  of  Education. 

County  School  Commission  in  each  county,  consisting 
of  three  members  appointed  by  Governor,  exercises 
local  supervision,  investigates  and  reports  to  State 
Board.  Hears  complaints  subject  to  appeal  to  State 
Board. 

County  Superintendent  has  general  superintendence 
of  all  schools  in  his  county.  Conducts  examinations 
of   teachers  and  issues   certificates.     Holds   teachers' 

296 


Ch.  XI]  DELAWARE  [§  138 

institute  once  a  year,  of  three  days'  session,  for  which 
is  annually  appropriated  one  hundred  and  fifty  dollars. 

Districts  are  numbered  in  continuation  of  the  school 
districts  of  the  same  county.     May  borrow  money. 

Electors  are  every  male  having  right  to  vote  for  State 
representative  and  who  has  paid  his  school  tax  for  the 
preceding  year;  and  every  female  above  twenty-one, 
having  paid  such  tax.  White  or  colored  voters  may  not 
vote  in  meetings  called  for  other  race. 

School  Age  is  six  or  over,  and  over  four  in  kinder- 
gartens. 

School  Term  at  least  one  hundred  and  forty  days. 

School  Committee  of  clerk  and  two  commissioners 
provide  schoolhouses  and  care  for  them ;  employ 
teachers  and  dismiss  them  for  cause ;  have  general 
supervision  of  schools.  Boards  of  education  control 
in  cities. 

Separate  Schools  are  provided  for  white  and  colored 
children. 

State  Board  of  Education  of  seven  members,  having 
general  supervision  and  control  of  both  white  and 
colored  schools.  They  hear  and  determine  all  appeals 
from  other  officials.  Commissioner  of  Education  is 
secretary.     Make  rules  and  enforce  them. 

Teachers  must  have  certificates,  to  be  awarded  after 
passing  an  examination,  except  normal  or  college 
graduates  in  discretion  of  County  Superintendent  once 
only,  may  be  granted  without  examination.  Must 
render  quarterly  reports  before  receiving  salary.  Must 
render  annual  report  to  State  Board.  Must  attend 
teachers'  institute. 

297 


§  139]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Cii.  XI 

Text-Books  are  loaned  to  pupils  free  of  charge. 
Those  who  desire  may  purchase  books  at  cost. 

Truancy  is  guarded  against  by  attendance  officers 
who  may  be  employed  in  each  district,  and  may  arrest 
without  warrant  and  place  in  school  those  who  fail  to 
attend  school  as  required. 

Vaccination  may  be  provided  free  of  charge. 

§  139.   Florida. 

Compulsory  Attendance  is  optional  with  district  or 
county  on  three-fifths  vote;  such  attendance  if 
adopted  to  apply  to  children  between  eight  and 
fourteen  for  at  least  eighty  days  in  each  year. 
Attendance  at  private  or  church  school  keeping 
record  and  making  report  may  be  substituted.  Ex- 
emptions are  for  mental  or  physical  infirmities;  res- 
idence two  miles  from  school,  where  transportation 
is  not  provided;  extreme  poverty;  necessary  tempo- 
rary absence. 

County  Board  of  Public  Instruction  of  three  members, 
no  two  of  whom  reside  in  same  district.  Are  corpora- 
tions. Hold  lands  for  school  purposes.  Locate  and 
maintain  schools.  Select  sites.  Build  and  repair 
schoolhouses.  Employ  teachers.  Report  to  State 
Superintendent.  Prescribe  studies.  May  not  contract 
with  members  except  for  school  sites. 

County  Superintendent  acts  as  secretary  of  County 
Board.  Visits  schools.  Selects  supervisors.  Decides 
questions  subject  to  appeal  to  County  Board. 
Examines  teachers  and  issues  certificates. 

School  Age  is  between  six  and  twenty-one. 

298 


Ch.  XI]  FLORIDA  [§  139 

School  District  may  be  a  city,  town,  or  division  of  a 
county. 

School  Term  is  determined  by  the  County  Board,  but 
must  be  not  less  than  four  months  in  each  year. 

School  Trustees  of  special-tax  districts  are  body  cor- 
porate.    May  hold  property,  sue  and  be  sued. 

Separate  Schools  are  required  by  the  constitution. 

State  Board  of  Education  required  by  constitution 
consists  of  Governor,  Secretary  of  State,  Attorney 
General,  State  Treasurer,  and  State  Superintendent 
of  Public  Instruction.  Is  a  body  corporate.  Direct 
and  manage  funds ;  hold  school  lands ;  decide  appeals 
from  State  Superintendent ;  remove  subordinate 
officials ;  have  general  supervision  of  school  matters. 

State  Superintendent  of  Public  Instruction  with  term 
of  four  years  is  required  by  the  constitution. 

Teachers  must  hold  certificates,  which  are  of  seven 
grades  :  third  grade,  second  grade,  first  grade,  primary, 
special.  State  and  life  certificates.  Have  supervision 
over  pupils  and  schoolhouses,  suspend  pupils  for  not 
more  than  ten  days.  Render  monthly  reports.  Mis- 
demeanor to  teach  in  school  of  other  race. 

Text-Books  are  to  be  uniform  as  adopted  by  the 
State  Text-Book  Commission  who  advertise  for  bids 
and  make  contracts  with  publishers  to  run  for  five 
years.  Publishers  are  to  furnish  bonds.  Books  are 
free  to  poor  children. 

Truancy  may  be  guarded  against  by  attendance 
officers,  who  serve  notice  of  the  non-attendance  upon 
the  parent  or  guardian,  who  is  to  be  prosecuted  if 
delinquency  is  continued. 

299 


§  140]         SYNOPSES  OF  PRINCIPAL  STATUTES    [Ch.  XI 

§  140.   Georgia. 

Bible  cannot  be  excluded  from  public  schools. 

County  Board  of  Education  is  composed  of  five  free- 
holders selected  by  the  grand  jury  of  each  county. 
County  School  Commissioner  is  ex  officio  secretary. 
Contract  with  teachers.  May  appoint  three  trustees 
for  a  sub-school  district  if  advisable.  Appeal  lies 
to  State  Superintendent.  May  borrow  money  for 
teachers'  salaries. 

County  Superintendent  elected  by  county  voters,  to- 
gether with  County  Board  of  Education  makes  rules  to 
govern  schools.  Acts  as  secretary  of  board.  Superin- 
tends examinations  of  teachers,  and  suspends  them  for 
cause,  subject  to  appeal  to  County  Board,  thence  to 
State  Superintendent,  thence  to  State  Board.  Is  agent 
of  the  County  Board. 

Employment  Certificates  are  issued  to  children  over 
twelve  and  under  fourteen  and  one-half  years. 

School  Age  is  between  six  and  eighteen. 

School  Districts  are  each  county,  and  are  managed  by 
the  County  Board  of  Education  who  may  lay  off  sub- 
school  districts  in  each  of  which  they  shall  establish 
one  white  and  one  colored  school  where  population  is 
sufficient. 

School  Term  at  least  five  months,  is  regulated  by 
County  Boards  of  Education. 

School  Trustees  three  in  number  may  be  appointed 
in  a  sub-school  district  by  the  County  Board  of  Educa- 
tion. They  recommend  teachers  to  County  Board. 
Supervise  schools,  and  school  property. 

Separate  Schools  are  to  be  provided. 

300 


Ch.  XI]  IDAHO  [§  141 

State  Board  of  Education  composed  of  six  members, 
the  Governor,  State  Superintendent  of  Schools,  and 
four  others  appointed  by  Governor  subject  to  confirma- 
tion by  Senate.  Provide  rules  and  regulations  for 
supervision  of  all  schools.  Select  list  of  text-books, 
which  can  be  changed  only  every  five  years,  unless 
peculiar  conditions  demand  change.  Final  decision 
on  appeal  from  State  Superintendent.  Provide  for 
examination  of  teachers.  Act  as  State  School-Book 
Commission. 

State  Superintendent  of  Schools  elected  by  people. 
General  superintendence  of  the  business  relating  to 
common  schools.  Reports  annually  to  legislature. 
Acts  as  secretary  and  executive  agent  of  State  Board  of 
Education.     Appoints  three  State  School  Supervisors. 

Text- Books  must  be  uniform.  School-Book  Commis- 
sion advertises  for  bids,  and  contracting  publisher 
gives  bond. 

Teachers  must  be  licensed.  Report  at  end  of  term. 
Attend  County  Institute.  Contract  is  an  entire  con- 
tract. 

Transportation  may  be  provided  for  pupils  living 
three  miles  or  more  from  schoolhouse. 

Vaccination  is  regulated  by  County  Boards  of  Educa- 
tion, and  in  larger  cities  by  Boards  of  PubHc  Education. 
They  may  require  all  pupils  to  be  vaccinated  as  a 
prerequisite  to  admission. 

§  141.    Idaho. 

Compulsory  Education  required  between  eight  and 
eighteen  in  a  pubhc,  private  or  parochial  school,  unless 

301 


§  141]  SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

child  is  over  fourteen  and  has  completed  eighth  grade, 
or  where  its  help  is  necessary  to  support  of  itself  or 
parent,  or  is  excused  for  good  cause  shown  to  superin- 
tendent of  district  or  county,  from  whose  decision 
final  appeal  lies  to  local  probate  court. 

County  Superintendent  is  elected  by  people.  Super- 
vises public  schools  of  count}'-  except  certain  larger 
ones.  Holds  teachers'  examinations.  Appoints  trus- 
tees in  new  districts,  and  fills  vacancies  in  older  ones. 
Holds  teachers'  institutes. 

District  Trustees  consisting  of  three  members  are 
elected  by  ballot  in  each  district.  They  employ 
teachers  on  written  contract  and  discharge  them  for 
cause  with  hearing.  Have  charge  of  school  property. 
Provide  furniture  and  janitor  service.  Must  not  vote 
for  relative  of  his  own  or  immediate  family  as  teacher. 
May  employ  attorney.  Independent  districts  have 
six  trustees. 

School  Age  is  between  six  and  twenty-one.  In 
kindergartens  between  three  and  six. 

School  Districts  are  bodies  corporate,  and  although  not 
municipal  corporations  may  contract  same  as  municipal 
corporations.  They  are  created  or  changed  on  peti- 
tion. Within  any  county  may  be  consolidated  and  are 
then  termed  "  independent  school  districts."  If  con- 
solidated from  two  or  more  counties  are  termed  "  joint 
school  districts." 

School  Term  is  not  less  than  seven  months  in  districts 
having  not  more  than  seventy-five  pupils,  nor  less  than 
nine  months  in  those  having  more  than  that  number. 

State  Board  of  Education  consists  of  five  members, 

302 


Ch.  XI]  ILLINOIS  [§  142 

appointed  by  Governor,  and  State  Superintendent 
ex  officio.  They  appoint  Commissioner  of  Education. 
Is  final  court  of  appeal  in  all  educational  controversies. 
Exercises  general  supervision  over  public  schools.  Pre- 
scribes minimum  course  of  studies.  Has  supervision 
of  text-books.     Controls  certification  of  teachers. 

State  Superintendent  of  Public  Instruction  is  elected 
by  people.  Confers  with  subordinate  officials  on  school 
matters.     Is  executive  officer  of  State  Board. 

Teachers  must  be  employed  on  written  contract,  and 
exhibit  certificate  to  trustees  before  signing  contract. 
Must  keep  register  and  report.  May  suspend  pupils 
and  report  to  trustees,  thence  appeal  lies  to  County 
Superintendent.     Must  attend  institute. 

Transportation  may  be  provided  in  consolidated  dis- 
tricts. 

§  142.   Illinois. 

Boards  of  Education  control  in  districts  of  not  fewer 
than  one  thousand  inhabitants  and  not  more  than  one 
hundred  thousand,  not  governed  by  special  acts.  Have 
powers  of  school  directors,  with  other  special  powers. 
Membership  varies  from  seven  to  fifteen.  In  cities  of 
more  than  one  hundred  thousand  consists  of  twenty- 
one  members. 

Compulsory  Attendance  is  required  between  seven  and 
sixteen  in  some  public  or  private  school  for  at  least 
six  months,  unless  instructed  elsewhere,  or  mentally  or 
physically  incapacitated,  or  between  fourteen  and 
sixteen  excused  when  necessarily  and  lawfully  em- 
ployed during  school  hours. 

303 


§  142]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Cii.  XI 

County  Superintendents  are  elected  by  people.  Grant 
certificates.  Generally  superintend.  Conduct  teachers' 
institutes.     Hold  examinations. 

Electors  may  be  women,  who  are  ehgible  to  school  office. 

Employment  Certificates  are  granted  to  certain  chil- 
dren between  fourteen  and  sixteen. 

Parental  Schools  for  truants  are  established  in  cities 
of  one  hundred  thousand  or  more,  and  may  be  estab- 
lished in  cities  between  twenty-five  thousand  and  one 
hundred  thousand. 

School  Age  is  between  six  and  twenty-one.  In 
kindergartens  from  four  to  six.  Exclusion  of  colored 
children,  or  keeping  them  from  a  public  school  by  in- 
timidation for  reason  of  color,  is  a  crime. 

School  Directors  three  in  number  are  elected  in 
school  districts  of  less  than  one  thousand  population, 
and  not  governed  by  any  special  acts.  Have  general 
supervision  of  schools.  Appoint  teachers  and  fix 
salaries.  Enforce  uniformity  of  text-books,  not  to  be 
changed  oftener  than  once  in  four  years.  Suspend  and 
expel  pupils.  Grant  temporary  use  of  schoolhouses, 
when  not  occupied  for  school,  for  religious  meetings, 
Sunday  schools,  evening  schools  and  literary  societies, 
and  for  other  proper  meetings.  Establish  schools  for 
the  deaf  between  three  and  twenty-one. 

School  Districts  are  each  congressional  township  and 
are  bodies  corporate. 

School  Term  is  not  less  than  six  nor  more  than  nine 
months. 

School  Trustees  three  in  number  are  elected  by  the 
people  in  each  district.     May  receive  gifts  for  school 

304 


Ch.  XI]  INDIANA  [§  143 

purposes;  sell  abandoned  schoolhouses ;  change  boun- 
daries ;   form  new  districts. 

Superintendent  of  Public  Instruction  elected  by  people 
supervises  all  public  schools.  Is  legal  adviser  of 
school  officers.  Hears  appeals  from  County  Superin- 
tendents.    Grants  and  suspends  teachers'  certificates. 

Teachers  must  have  certificates  and  be  at  least 
eighteen  years  of  age.  Pension  funds  are  established. 
Keep  registers,  and  report. 

Text- Books  are  loaned  free  to  indigent  children. 
Must  be  uniform  and  not  changed  oftener  than  once 
in  four  years. 

Truant  Officers  may  arrest  any  truant  child  of  school 
age,  not  lawfully  employed,  and  place  with  teacher. 

§  143.   Indiana. 

Bible  shall  not  be  excluded  from  the  public  schools. 

Compulsory  Attendance  is  required  between  seven 
and  fourteen  in  a  public,  private,  or  parochial  school ; 
or  between  eight  and  sixteen  if  blind  or  deaf. 

County  Board  of  Education  consists  of  County  Super- 
intendent, the  trustees  of  the  township,  and  chairman 
of  the  school  trustees  of  each  town  and  city.  They 
consider  the  general  wants  and  needs  of  schools  and 
property. 

County  Superintendent  takes  oath  and  furnishes  bond. 
Has  general  superintendence  of  the  schools  in  his 
county.  Visits  schools.  Conducts  teachers'  institutes. 
Gives  decisions  in  controversies.  Examines  teachers. 
Appeal  except  on  certain  local  matters  lies  to  State 
Superintendent. 

305 


§  143]         SYNOPSES   OF  PRINCIPAL   STATUTES    [Ch.  XI 

Night  Schools  may  be  established  in  cities  of  three 
thousand  or  more,  open  to  all  persons  between  fourteen 
and  thirty  who  are  employed  during  the  day. 

Secret  Societies  are  unlawful  in  any  elementary  or 
high  school  under  penalty  of  suspension  or  expulsion. 

School  Commissioners  of  five  members  have  control  of 
schools  in  cities  of  one  hundred  thousand  or  more  in- 
habitants.   Women  are  eligible  to  serve  on  such  boards. 

School  Districts  are  each  civil  township,  and  each 
incorporated  town  or  city.     Are  bodies  corporate. 

School  Term  is  at  least  six  months. 

School  Trustees  may  be  of  either  sex,  over  twenty- 
one,  either  married  or  single.  Board  consists  of  three 
members.  In  larger  cities  they  are  elected  by  the 
common  council.  Have  general  charge  of  educational 
affairs ;  employ  teachers  ;  estabhsh  and  locate  schools. 

Separate  Schools  for  colored  pupils  may  be  provided ; 
but  unless  provided  shall  be  admitted  to  schools  with 
white  children. 

State  Board  of  Education  shall  consist  of  Superin- 
tendent of  Public  Instruction,  presidents  of  Purdue 
University,  State  University,  and  State  Normal  School, 
Superintendents  of  Schools  of  three  largest  cities,  and 
six  others.  Grant  State  certificates  to  teachers.  Are 
text-book  commission.  Advertise  for  bids,  books  to 
be  supplied  for  five  years.  Township  trustees  furnish 
books  free  to  indigent  children.  Books  shall  be  uni- 
formly used. 

State  Superintendent  is  elected  by  the  people.  Shall 
visit  each  county  at  least  once  and  examine  auditor's 
books  and  records,  meet  with  officers  and  teachers. 

306 


Ch.  XI]  IOWA  [§  144 

Teachers  must  be  licensed  by  State  Board  of  Educa- 
tion, State  Superintendent,  or  County  Superintendents. 
Trustees  shall  not  employ  any  teacher  whom  a  majority 
of  the  electors  at  a  school  meeting  decide  they  do  not 
wish  employed.  All  contracts  with  teachers  shall  be  in 
writing.  Must  render  reports.  Pension  funds  are  estab- 
lished in  cities  over  one  hundred  thousand.  Institutes 
are  held  once  each  month,  which  must  be  attended. 

Text-Books  are  selected  by  State  Board  of  Education 
who  are  also  a  text-book  commission.  Bids  shall  be 
advertised  for.     All  books  shall  be  uniform. 

Transportation  shall  be  provided,  in  case  of  dis- 
continued schools,  for  all  pupils  between  six  and 
twelve  who  live  between  one  and  two  miles  from  the 
school  to  which  they  are  transferred,  and  for  all  pupils 
living  more  than  two  miles  from  such  school. 

Truancy  is  controlled  by  County  Boards  of  Education 
as  truancy  boards,  who  appoint  one  truant  officer 
who  reports  truancy  to  the  parent  or  guardian,  and  if 
the  truancy  continued  proceeds  against  them.  Cities 
or  towns  of  five  thousand  or  more  enumerated  school 
children  may  be  considered  by  the  county  board  of 
truancy  as  a  separate  district  for  the  application  of  the 
truancy  act.  Cities  of  ten  to  twenty  thousand  children 
shall  have  two  truant  officers  and  larger  cities  have 
more  such  officers. 

§  144.   Iowa. 

Bible  shall  not  be  excluded  from  the  public  schools, 
nor  shall  any  child  be  required  to  read  it  contrary  to 
wishes  of  parent  or  guardian. 

307 


§  144]         SYNOPSES   OF  PRINCIPAL   STATUTES    [Ch.  XI 

Board  of  Educational  Examiners  consisting  of  the 
Superintendent  of  Public  Instruction,  president  of  the 
University,  principal  of  the  Normal  School,  and  two 
persons,  one  a  woman,  to  be  appointed  by  the  Governor. 
Conduct  examinations  of  teachers.  Issue  State  cer- 
tificates and  diplomas. 

Compulsory  Attendance  is  required  between  seven  and 
sixteen  if  in  proper  mental  and  physical  condition,  at 
some  public,  private  or  parochial  school,  or  elsewhere 
under  a  competent  teacher,  unless  such  child  lives  more 
than  two  miles  from  any  school  and  transportation  is 
not  provided,  or  if  regularly  employed  if  over  fourteen, 
or  has  education  equal  to  eighth  grade,  or  who  is  ex- 
cused by  order  of  court,  or  while  receiving  religious 
instruction. 

County  Superintendent  may  be  of  either  sex.  Visits 
schools.  County  Attorney  is  his  official  adviser. 
Examines  applicants  for  teachers'  certificates.  Sees 
that  law  is  enforced.  Appeal  lies  to  him  from  school 
directors  in  many  matters,  and  from  his  decision  to 
State  Superintendent,  but  he  may  not  render  judg- 
ment for  money. 

County  Board  of  Education  consists  of  County 
Superintendent,  County  Auditor,  and  Board  of  Super- 
visors. Provide  for  submitting  to  electors  question 
of  uniformity  of  books.  Select  text-books  when  uni- 
formity law  is  adopted.  County  Attorney  is  their 
legal  adviser. 

Electors  may  be  male  or  female. 

Secret  Societies  are  prohibited  except  such  as  are 
sanctioned  by  the  directors  of  the  schools.    Penalty 

308 


Ch.  XI]  IOWA  [§  144 

is  suspension,  dismissal,  or  curtailment  of  privileges  in 
school  honors. 

School  Age  is  between  five  and  twenty-one.  Over 
twenty-one  may  be  admitted  upon  contract  for  tuition. 

School  Directors  for  each  township  composed  of  one 
director  from  each  sub-district,  but  if  township  is  not 
divided  into  sub-districts  the  number  elected  shall  be 
three.  In  independent  districts  the  board  consists 
of  five.  Have  management  and  exclusive  control  of 
school  affairs.  Women  are  eligible.  Contract  in  writ- 
ing with  teachers. 

School  Districts  are  corporations,  and  as  nearly  as 
possible  the  boundaries  of  civil  and  school  townships 
shall  coincide.  Sub-districts  are  not  corporations. 
When  a  new  civil  township  is  formed  it  shall  also  con- 
stitute a  school  township.  Townships  may  be  divided 
into  sub-districts. 

Superintendent  of  Public  Instruction  is  appointed  by 
Governor,  with  consent  of  Senate,  to  serve  four  years. 
Has  general  supervision  and  control  of  public  schools 
not  under  control  of  State  Board  of  Education.  In- 
spects and  recommends.  Examines  and  determines 
appeals.  Appoints  county  institutes.  Prepares  and 
supplies  questions  for  examinations  of  applicants  for 
teachers'  certificates  and  pupils  completing  eighth 
grade  of  rural  schools. 

Teachers  must  hold  certificates.  Keep  registers, 
and  report.     May  temporarily  dismiss  pupils. 

Text-Books  are  free  to  indigent  pupils,  and  to  the 
pupils  of  any  district  so  voting.  Adopted  by  directors 
of  each  school  corporation  to  be  sold  to  pupils  at  cost, 

309 


§  145]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

no  contract  necessary  for  any  particular  period.  Bids 
must  be  advertised  for,  and  contracting  publisher 
must  give  bond.  Uniformity  law  does  not  apply  to 
cities  or  towns. 

Transportation  may  be  provided  in  certain  cases, 
especially  in  consolidated  districts. 

Truant  Officers  are  appointed  in  school  corporations 
of  over  twenty  thousand  population.  Arrest  truant 
children  without  a  warrant  and  place  them  in  school. 
In  smaller  towns  the  marshal  or  other  pohce  officer 
may  be  employed  as  a  truant  officer. 

§  145.  Kansas. 

Board  of  County  Examiners  composed  of  County 
Superintendent  and  two  others,  in  each  county,  examine 
persons  proposing  to  teach. 

Board  of  Education  of  six  members  are  elected  in  larger 
cities.  They  shall  elect  a  Superintendent  of  Schools 
who  shall  have  charge  and  control  of  the  schools  of 
the  city.  They  may  open  school  buildings  for  use  of 
night  schools,  and  various  educational  societies.  They 
are  bodies  corporate  and  may  exercise  eminent  domain. 

Compulsory  Attendance  is  required  between  eight  and 
fifteen  years,  in  a  public,  private,  denominational,  or 
parochial  school,  provided  that  employed  children  of 
fourteen  may  attend  but  eight  weeks  in  one  year. 
Temporary  absence  between  eight  and  fourteen  may  be 
excused  in  cases  of  emergency  or  domestic  necessity. 
I.  County  Superintendent  is  elected.  Takes  oath  and 
gives  bond.  Visits  schools.  Fills  vacancies  in  school 
district  board. 

310 


Ch.  XI]  KANSAS  [§  145 

Electors  are  male  or  female  residents  of  the  district 
for  thirty  days,  who  are  not  disqualified. 

School  Age  is  between  five  and  twenty-one.  In 
kindergartens  between  four  and  six. 

School  Districts  are  parts  of  a  county.  A  "  depopu- 
lated school  district  "  means  one  having  fewer  than 
five  legal  voters,  and  fewer  than  seven  persons  between 
the  ages  of  five  and  twenty-one ;  if  less  than  twelve 
but  more  than  seven  children  of  such  age,  the  district 
is  termed  "  partially  depopulated."  All  districts  are 
bodies  corporate.  "  Joint  districts  "  are  those  con- 
solidated from  districts  lying  in  two  or  more  coun- 
ties. 

School  District  Officers  are  a  director,  clerk,  and 
treasurer  who  constitute  the  district  board.  They  are 
a  board  of  directors  only  when  sitting  as  such.  Have 
care  of  district  property.  May  open  schoolhouse  for 
use  of  religious,  political,  literary,  scientific,  mechanical, 
or  agricultural  societies,  or  societies  for  suppression  of 
crime.  Hire  teachers.  Supervise  schools.  Furnish 
registers  and  see  that  they  are  properly  kept. 

School  Term  not  less  than  three  nor  more  than  ten 
months. 

Secret  Societies  as  a  high  school  organization  are 
prohibited  under  penalty  of  expulsion. 

Separate  Schools  may  be  maintained,  but  no  dis- 
crimination on  account  of  color  may  be  made  in  high 
schools  except  in  Kansas  City. 

State  Board  of  Education  consists  of  State  Superin- 
tendent, chancellor  of  State  University,  president  of 
State  Agricultural  College,  president  of  State  Normal 

311 


§  145]         SYNOPSES    OF   PRINCIPAL  STATUTES    [Ch.  XI 

School,  and  three  others  appointed  by  the  Governor. 
Prescribes  studies.     Issues  teachers'  certificates. 

State  School  Book  Commission  of  seven  members 
shall  print,  publish  or  provide  for  the  pubhcation  of  a 
complete  series  of  school  text-books  for  use  in  the  public 
schools. 

State  Superintendent  supervises  and  manages  edu- 
cational interests  of  the  State.  Appoints  an  assistant 
State  Superintendent.  Renders  opinions  to  County 
Superintendents  upon  written  statements  of  fact. 

Teachers  must  have  certificates  which,  when  issued 
by  State  Board  of  Education,  are  good  throughout  the 
State.  Salary  may  not  be  paid  unless  certificate  is 
registered.  Are  required  monthly  to  report  truants 
before  receiving  salary.  Retirement  fund  in  larger 
cities  for  those  of  thirty  years'  service.  Contract  must 
be  in  writing. 

Text-Books  as  far  as  possible  are  to  be  published  by 
the  State.  Free  to  pupils  upon  vote  of  district.  Books 
not  pubhshed  by  the  State  are  to  be  contracted  for 
on  bids,  such  books  not  to  be  changed  in  five  years. 

Transportation  of  pupils  living  two  or  more  miles 
from  school  in  consolidated  districts  shall  be  provided  in 
a  safe  and  enclosed  conveyance.  May  be  provided 
for  pupils  in  any  district,  living  two  and  one-half  or 
more  miles  from  school,  in  properly  heated  conveyance. 

Truant  Officers  are  nominated  by  the  County  Superin- 
tendents, and  appointed  by  the  board  of  county  com- 
missioners. Each  county  constitutes  one  or  more 
truant  districts.  In  larger  cities  they  are  appointed  by 
the  local  board  of  education.     They  give  written  notice 

312 


Ch.  XI]  KENTUCKY  [§  146 

of  truancy  to  the  parent  or  guardian  and  if  truancy  does 
not  cease  the  parent,  guardian  or  other  person  having 
control  of  the  child  is  proceeded  against  under  charge 
of  misdemeanor.  County  Attorneys  in  country  dis- 
tricts, and  City  Attorneys  in  city  districts  shall  prosecute 
such  actions. 

Tuition  Fees  may  be  assessed  when  in  any  district 
the  public  money  is  not  sufficient  to  keep  the  schools 
open  during  the  term  voted  at  the  district  meeting. 

§  146.   Kentucky. 

County  Board  of  Education  consists  of  chairmen  of 
each  division  together  with  County  Superintendent. 
Advertise  for  text-book  bids  and  award  contracts. 

County  Superintendent  elected  by  people,  together 
with  two  others  examine  teachers.  Must  attend  in- 
stitute. Decides  school  matters  subject  to  appeal  to 
State  Superintendent. 

Compulsory  Attendance  is  required  between  seven 
and  twelve  in  some  public,  private  or  parochial  school. 
Home  tuition  subject  to  examination  may  be  a  substi- 
tute.    Excused  for  mental  or  physical  infirmity. 

Educational  Commission  of  eleven  members  have 
general  duty  of  recommending  improvements  in  the 
school  system. 

Electors  may  be  women. 

School  Age  is  between  six  and  twenty. 

School  Districts  are  counties,  or  such  part  of  a  county 
not  controlled  by  a  city  school.  Are  sub-divided  into 
educational  divisions,  each  of  which  is  again  divided 
into  sub-districts. 

313 


§  146]         SYNOPSES   OF  PRINCIPAL   STATUTES    [Ch.  XI 

Schoolhouses  may  be  used  for  public  gatherings  when 
the  schools  are  not  in  session. 

School  Term  is  at  least  six  months. 

School  Trustees  are  elected,  one  from  each  sub-district, 
and  all  trustees  elected  within  each  educational  division 
constitute  a  division  board.  Each  trustee  recommends 
needs  of  sub-district  to  division  board.  The  board 
is  a  body  corporate.  Have  power  to  suspend  pupils 
upon  written  complaint  from  teacher. 

Separate  Schools  are  established  and  required  by  con- 
stitution. 

State  Board  of  Education  consists  of  the  Superinten- 
dent of  Public  Instruction,  Secretary  of  State,  and 
Attorney  General.  Is  body  corporate.  Makes  rules 
and  regulations  for  schools.  Decides  appeals  from 
State  Superintendent. 

State  Board  of  Examiners  consists  of  Superintendent 
of  Public  Instruction  and  two  others.  Examine  ap- 
plicants for  educational  positions. 

Superintendent  of  Public  Instruction  is  elected  by  the 
people.  Decides  appeals  from  County  Superintendents. 
Acts  on  State  Board  of  Examiners. 

Teachers  contract  in  writing  and  in  duplicate  with 
division  board.  Must  have  certificate.  Keep  records 
and  report.  Have  power  to  suspend  pupils,  reporting 
in  writing  to  chairman  of  board  of  trustees.  Must 
attend  institute. 

Text-Books  are  free  to  indigent  children.  Text- 
book commissions  advertise  for  bids,  and  contract- 
ing publisher  shall  furnish  bond.  Uniform  series  is 
adopted. 

314 


Ch.  XI]  LOUISIANA  I§  147 

§  147.   Louisiana. 

Compulsory  Attendance  in  the  parish  of  Orleans  of 
children  between  eight  and  fourteen  in  a  public,  private, 
denominational  or  parochial  day  school.  Excused  by 
attendance  officer  of  parish  for  physical  or  mental 
infirmity,  or  being  instructed  at  home  in  the  common 
school  branches,  or  where  school  accommodations  within 
twenty  city  blocks  are  inadequate.  Children  between 
fourteen  and  sixteen  not  lawfully  and  regularly  engaged 
in  some  useful  employment  six  hours  a  day  are  also 
subject  to  the  act.  Other  districts  have  the  option 
to  adopt  compulsory  attendance,  except  that  cities  of 
over  twenty-five  thousand  inhabitants  have  it  for  at 
least  four  months  each  year. 

Parish  Superintendent  is  ex  officio  secretary  to  board 
of  directors  of  the  parish,  except  in  New  Orleans.  Visits 
each  school  district  in  his  parish.  Holds  teachers' 
institute  monthly  or  bimonthly  except  in  New  Orleans. 

School  Age  is  between  six  and  eighteen,  but  in  kinder- 
gartens between  four  and  six. 

School  Directors  are  elected  one  for  each  police  juror 
in  each  police  jury  ward  in  each  parish.  They  are 
bodies  corporate.  Shall  visit  and  examine  schools  and 
advise  with  trustees.  Select  teachers  and  fix  their 
salaries.  District  Attorney  shall  act  as  counsel,  ex- 
cept city  attorney  in  New  Orleans.  Have  authority 
to  collect  fifty  cents  per  annum  from  parent  or  guard- 
ian of  each  child  to  provide  fuel  and  comforts,  not 
more  than  one  dollar  and  fifty  cents  to  be  collected  in 
each  instance. 

Separate  Schools  are  required  by  the  constitution. 

315 


§  148]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

State  Board  of  Public  Education  consists  of  Governor, 
Superintendent  of  Public  Education,  Attorney  General, 
and  one  citizen  appointed  from  each  congressional 
district.  Are  body  corporate.  Governor  is  ex  officio 
president  and  State  Superintendent  is  secretary.  Pre- 
pare rules  and  regulations  for  schools.  Enforce  uni- 
formity of  text-books  which  shall  not  be  changed  in 
six  years. 

Superintendent  of  Public  Education  is  elected  by  the 
people.  Has  general  supervision  of  all  school  boards 
of  the  parishes.     Visits  parishes.     Examines  teachers. 

Teachers  must  attend  institute.  Serve  under  written 
contract.  Must  have  certificate  or  diploma.  Must 
render  monthly  report  before  receiving  salary.  Have 
retirement  fund  in  parish  of  Orleans. 

Text-Books  are  free  to  indigent  pupils. 

Vaccination  as  a  condition  precedent  to  admission  is 
required.  Certificates  of  successful  vaccination,  or  of 
three  unsuccessful  attempts  which  are  good  for  one  year, 
are  required  every  five  years. 

§  148.   Maine. 

Compulsory  Attendance  between  seven  and  fifteen, 
unless  receiving  approved  instruction  elsewhere,  and  be- 
tween fifteen  and  seventeen  when  education  is  deficient. 

Districts  are  abolished  except  that  those  organized 
with  special  powers  still  exist  with  limited  corporate 
powers.  Towns  take  place  of  other  former  districts. 
Persons  between  five  and  twenty-one  living  at  any 
marine  station  may  attend  any  public  school  in  the 
State  without  charge. 

316 


Ch.  XI]  MAINE  [§  148 

Evening  Schools  may  be  established  by  any  town, 
admitting  persons  of  any  age,  teaching  only  elementary 
branches,  under  direction  of  superintending  school 
committee,  except  that  drawing  may  be  taught  to 
persons  over  fifteen. 

Manual  Training  Schools  may  be  maintained  by 
cities  and  towns  under  supervision  of  the  superintending 
school  committee,  admitting  persons  between  six  and 
twenty-one  years  of  age.  They  may  include  domestic 
science,  agriculture,  mechanic  arts,  and  the  trades. 

School  Age  is  between  five  and  twenty-one,  with 
compulsory  attendance  between  seven  and  fifteen. 

School  Buildings  not  to  be  defaced  or  injured  under 
penalty  of  double  damages.  Obscene  defacing  sub- 
ject to  fine  of  not  more  than  ten  dollars. 

School  Term  is  not  less  than  thirty  weeks  annually. 

Secret  Societies  as  school  organizations  are  under 
ban,  and  no  pupil  shall  be  a  member  of  such  under 
penalty  of  expulsion. 

State  Superintendent  is  appointed  by  Governor  and 
Council.  Has  general  supervision  of  all  schools. 
Prescribes  studies  to  be  taught  in  common  schools, 
but  local  committee  may  add  thereto.  Has  examina- 
tion of  applicants  for  certificates. 

Superintendent  of  Schools  in  each  town  is  ex  officio 
secretary  of  superintending  school  committee,  and 
performs  such  duties  as  they  shall  direct,  keeps  records, 
acts  as  financial  agent,  employs  teachers  subject  to 
approval  of  the  committee. 

Superintending  School  Committee  of  three,  chosen 
by  ballot  at  the  annual  town  meeting,  women  being 

317 


§  148]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

eligible,  may  suspend  for  one  year  any  school  of  too 
few  pupils.  May  provide  conveyances  for  pupils 
when  necessary,  or  in  lieu  thereof  pay  the  board  of 
pupils  near  schools.  Approve  plans  of  schoolhouses, 
subject  to  approval  by  State  Superintendent  and 
State  Board  of  Health.  Make  rules  and  regulations, 
have  management  of  schools,  custody  and  care  of 
property,  elect  Superintendent  of  Schools,  select  text- 
books, discharge  teachers  for  cause  after  notice  and 
investigation,  expel  pupils  and  restore  them. 

Teachers  to  the  number  of  thirty  or  more  may  form 
association  for  mutual  improvement  and  hold  conven- 
tions at  least  once  a  year,  one  thousand  dollars  being 
appropriated  for  that  purpose.  Certificates  are  neces- 
sary. Either  sex  at  sixty  having  taught  thirty-five 
years,  receives  pension  of  two  hundred  and  fifty  dollars 
annually;  if  having  taught  thirty  years  the  pension 
is  two  hundred  dollars  annually;  if  having  taught 
twenty-five  years  the  pension  is  one  hundred  and  fifty 
dollars  annually.  For  this  purpose  twenty-five  thou- 
sand dollars  are  appropriated  annually. 

Text-Books,  apparatus  and  appliances  shall  be  pro- 
vided by  towns  and  loaned  to  pupils  free  of  charge. 
Books  not  to  be  changed  in  five  years  unless  by  vote 
of  town.  No  second-hand  books  to  be  purchased  for 
any  school.  Parents  and  guardians  may  buy  books 
for  separate  use.  Books  shall  be  uniform  in  each 
town. 

Truant  Officers,  one  or  more,  are  elected  annually 
by  the  superintending  school  committee.  May  arrest 
truants  and  take  them  to  school  on  notification  of 

318 


Ch.  XI]  MARYLAND  [§  149 

teacher.     Towns  may  make  by-laws  concerning  tru- 
ancy. 

Vaccination  may  be  required  in  discretion  of  super- 
intending school  committee,  and  under  penalty  of 
exclusion. 

§  149.   Maryland. 

Compulsory  Attendance  is  required  in  the  City  of 
Baltimore,  between  eight  and  fourteen  at  some  day 
school  regularly,  unless  receiving  equivalent  instruc- 
tion elsewhere,  unless  mentally  or  physically  incapaci- 
tated. Also  required  between  fourteen  and  sixteen 
unless  regularly  and  lawfully  employed.  For  failure 
to  comply  person  having  control  of  child  may  be  found 
guilty  of  misdemeanor.  Same  law  is  optional  in  other 
parts  of  State.  Age  for  deaf  and  bhnd  children  is 
between  six  and  sixteen. 

County  School  Commissioners  are  appointed  by  Gov- 
ernor. Six  members  in  larger  counties  and  three  in 
smaller  counties.  Are  bodies  corporate.  Have  super- 
vision and  control  of  all  pubhc  schools  in  their  county. 
Build  and  repair  schoolhouses.  Purchase  and  dis- 
tribute text-books. 

County  Superintendent  examines  teachers.  Acts  as 
secretary  and  treasurer  of  County  School  Commissioners. 
Holds  examinations  for  applicants  for  teachers'  certi- 
ficates.    Presides  at  institute. 

School  Age  is  between  six  and  twenty-one  for  whites, 
six  and  twenty  for  colored  children. 

School  Districts  are  portions  of  a  county. 

School  Term  is  ten  months  if  possible. 

319 


§  149]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

School  Trustees  three  in  number  are  appointed  by 
County  School  Commissioners.  Have  care  of  school- 
houses  and  lands.  May  suspend  or  expel  pupils  sub- 
ject to  appeal  to  County  School  Commissioners  whose 
decision  is  final. 

Separate  Schools  are  established. 

State  Board  of  Education  consisting  of  Governor, 
State  Superintendent  and  six  members,  appointed  by 
Governor  with  consent  of  Senate,  have  general  care 
and  supervision  of  public  education.  Decide  contro- 
versies, and  their  decision  is  final.  Remove  County 
Superintendents. 

Superintendent  of  Public  Education  is  appointed  or 
removed  by  Governor,  Informs  himself  and  State 
Board  on  condition  of  education  in  State.  Diffuses 
information.  Conserves  interests  and  promotes  effi- 
ciency.    Conducts  correspondence  of  State  Board. 

Teachers  must  hold  certificates  and  take  oath. 
Keep  records  and  render  reports  quarterly  before 
receiving  salary.  At  age  of  sixty  may  be  placed  on 
"  teachers'  retired  list ",  and  receive  a  pension  of  two 
hundred  dollars  annually  if  without  means  of  support. 
Must  be  nineteen  if  male,  eighteen  if  female.  Must 
attend  institute.  Care  for  condition  of  school  rooms. 
Must  render  reports,  pending  which  salary  is  with- 
held. 

Text-Books  are  purchased  upon  competitive  bidding, 
and  are  free  to  indigent  pupils.  Also  may  be  free  to 
others.     May  be  privately  purchased. 

Transportation  may  be  furnished  to  pupils  in  consoli- 
dated schools. 

320 


Ch.  XI]  MASSACHUSETTS  [§  150 

Truancy  is  guarded  against  in  the  City  of  Baltimore 
by  attendance  officers  male  or  female,  not  exceeding 
nineteen  in  all.  May  be  appointed  in  any  other  coun- 
ties if  desired.  May  arrest  any  truant  without  a 
warrant  and  dehver  to  parent,  guardian  or  teacher. 
If  habitual  truant  shall  bring  into  juvenile  court. 

Vaccination  is  a  condition  precedent  to  admission 
into  a  public  school. 

§  150.   Massachusetts. 

Athletic  Associations  of  pupils,  bearing  name  of 
school,  are  under  control  of  School  Committee. 

Bible  shall  be  read  daily  without  written  note  or 
oral  comment.  Pupils  may  be  excused  therefrom  on 
written  request  of  parent  or  guardian. 

Compulsory  Attendance  between  seven  and  fourteen, 
and  under  sixteen  where  education  is  deficient.  Exemp- 
tions are  of  those  who  are  physically  or  mentally  in- 
capacitated, or  those  otherwise  instructed  in  a  manner 
approved  in  advance  by  the  Superintendent  of  Schools, 
or  School  Committee.  If  over  sixteen  and  under 
twenty-one  with  deficient  education,  must  attend 
evening  school  if  the  town  maintains  one. 

Correspondence  Courses  are  estabhshed  by  the  de- 
partment of  University  Extension,  agriculture  being 
excluded.  Twenty-five  thousand  dollars  is  annual 
appropriation. 

Districts  as  such  are  abolished  and  towns  or  cities 
control.  They  shall  provide  and  maintain  a  sufficient 
number  of  schoolhouses  under  penalty.  The  location 
is  to  be  determined  in  town  meeting. 

321 


§  150]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

Electors  include  women  who  are  qualified. 

Employment  Certificates  are  issued  to  children  be- 
tween fourteen  and  sixteen. 

Evening  Schools  may  be  maintained  in  any  town,  and 
shall  be  maintained  in  every  city  or  town  issuing  twenty 
or  more  employment  certificates.  Persons  over  four- 
teen admitted.  Evening  high  schools  shall  be  main- 
tained in  cities  of  fifty  thousand  or  more  inhabitants  upon 
petition  of  fifty  or  more  persons  who  desire  to  attend. 

Exclusion  if  permanent,  and  for  misconduct,  entitles 
pupil  to  a  hearing. 

Free  Lunches  may  be  provided  for  pupils  by  any 
city  or  town,  or  a  charge  not  exceeding  the  cost  may 
be  made  therefor,  if  so  voted  by  a  majority  at  the 
municipal  election,  upon  petition  of  five  per  cent  of 
the  voters. 

Manual  Training  as  part  of  the  school  system  shall 
be  maintained  in  every  city  or  town  of  twenty  thousand 
or  more  inhabitants. 

Nautical  Schools  may  be  maintained  by  towns. 

School  Age  as  to  those  under  seven  rests  with  local 
committee.  Maximum  age  is  governed  by  compulsory 
attendance  laws. 

School  Committees  of  each  town  shall  have  general 
charge  of  all  public  schools.  Select  and  contract 
with  teachers,  may  personally  examine  them  or  accept 
normal  school  diplomas.  May  dismiss  teachers.  Shall 
prescribe  courses  of  studies  and  books  to  be  used. 
Shall  employ  Superintendent  of  Schools  separately, 
or  in  joint  committee  for  union  of  schools.  Shall  cause 
registers  to  be  kept.     Women  are  ehgible  to  the  office. 

322 


Ch.  XI]  MASSACHUSETTS  [§  150 

Schoolhouses  except  in  the  city  of  Boston,  may  be 
used  for  other  education,  recreation,  social,  civic, 
philanthropic  and  similar  purposes,  providing  such  use 
does  not  interfere  with  school  purposes. 

School  Term  of  at  least  thirty-two  weeks  in  general, 
but  smaller  towns  with  consent  of  Board  of  Education 
may  hold  twenty-eight  weeks. 

State  Board  of  Education  consisting  of  nine  persons 
appointed  by  Governor  and  Council  consolidated  with 
Commission  of  Industrial  Education.  No  compensa- 
tion. Shall  appoint  Commissioner  of  Education  to  have 
supervision  of  all  educational  work,  with  two  deputies. 
He  suggests  improvements  and  collects  information. 

Teachers  to  the  number  of  twenty-five,  of  three 
contiguous  towns,  may  have  teachers'  institute.  Three 
thousand  dollars,  appropriated  annually.  Shall,  before 
opening  school,  obtain  from  school  committee  a  cer- 
tificate in  duplicate.  Shall  faithfully  keep  registers, 
and  two  weeks'  salary  preceding  end  of  term  are  with- 
held pending  return  of  report.  Retirement  system 
of  pension  and  annuities  is  established.  At  sixty 
may  be,  and  at  seventy  shall  be  retired. 

Text- Books  and  other  supplies  are  purchased  by 
school  committee  at  expense  of  the  town,  and  loaned 
to  pupils  free  of  charge.  Tools  and  cooking  materials 
are  also  supplied  free  where  such  instruction  is  given. 
Text-Books  for  private  ownership  may  be  sold  at  not 
more  than  cost.  Changes  may  be  made  in  text-books 
by  two-thirds  vote  of  the  school  committee. 

Transportation  of  pupils  may  be  provided.  Street 
or   elevated    railways,   except    the    Boston    Elevated 

323 


§  151]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

Railway  Co.,  may  charge  not  to  exceed  one-half  regular 
fare. 

Truancy  is  guarded  against  by  truant  officers.  The 
school  committee  of  every  city  and  town  shall  appoint 
and  fix  the  compensation  of  one  or  more  truant  officers, 
who  may  be  either  male  or  female.  They  shall  not 
be  paid  by  fees.  Shall  apprehend  without  a  warrant 
and  take  to  school  any  child  under  twenty-one  who  is 
employed  in  violation  of  law. 

Vacation  Schools  may  be  maintained  by  cities  or 
towns.     Attendance  not  compulsory. 

Vaccination  is  required  as  a  condition  precedent  to 
admission  unless  excused  by  physician's  certificate. 

Vocational  Schools  for  teaching  industries,  agricul- 
tural, and  household  arts  may  be  established  by  towns 
or  districts  with  State  aid. 

§  151.   Michigan. 

Boards  of  Education  consisting  of  five  members 
elected  at  large  control  single  or  township  district. 
Fill  vacancies  in  Board  until  next  election.  Purchase 
school  sites.  Vote  taxes  for  teachers'  wages.  Have 
custody  of  school  property.  Specify  studies.  Select 
and  adopt  text-books.  Have  general  care  of  schools. 
Suspend  or  expel  pupils. 

Com'pulsory  Attendance  is  required  between  seven 
and  sixteen  in  public,  private  or  parochial  school, 
unless  the  eighth  grade  work  has  been  completed  and 
the  child  is  lawfully  employed,  or  physically  unable 
to  attend.  Over  fourteen  may  be  excused  if  services 
are  necessary  to  support  of  parents ;    or  if  attending 

324 


Ch.  XI]  MICHIGAN  [§  151 

confirmation  classes  between  twelve  and  fourteen,  not 
to  exceed  five  months  in  each  year;  or  if  under  nine 
and  lives  two  and  one-half  or  more  miles  from  school 
and  transportation  is  not  provided.  Deaf  children 
must  attend  between  seven  and  eighteen  in  special 
school.  Permit  must  be  secured  before  employing 
children  under  sixteen. 

Cou7ity  Superintendent  is  termed  County  Commis- 
sioner of  Schools.  Records  granting  of  certificates. 
Visits  schools.  Counsels  with  teachers  and  school 
boards.  Calls  meeting  of  school  officers  of  county 
at  least  once  a  year  for  consultation. 

Electors  may  be  male  or  female  of  certain  qualifi- 
cations. 

School  Age  is  over  five.  Between  four  and  seven  in 
kindergartens.  No  separate  schools  allowed  for  colored 
children. 

School  Board  consists  of  three  officers ;  a  moderator, 
director  and  treasurer,  elected  by  district.  Must  be 
taxpayers.  Purchase  sites  and  build  schoolhouses. 
Hire  teachers  on  written  contract.  Have  care  of 
schoolhouses.  Shall  open  schoolhouse,  when  not  in 
use,  for  public  meetings  unless  district  votes  otherwise. 
Make  rules  for  schools  and  property.  Suspend  or 
expel  pupils  for  cause. 

School  Co7nmissioner  (see  County  Superintendent). 

School  Districts  are  townships  or  portions  of  town- 
ships and  are  bodies  corporate.  Fractional  districts 
are  those  formed  from  two  or  more  townships.  When 
comprising  entire  township  is  termed  single  school 
district,  and  is  then  controlled  by  Board  of  Education 

325 


§  151]  SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

of  five  members.  In  upper  peninsula  a  single  school 
district  may  be  divided  into  sub-districts.  Certain 
large  cities  are  also  single  school  districts. 

School  Examiners  consist  of  County  School  Com- 
missioner and  one  other.  Examine  applicants  for 
teachers'  certificates.  Questions  are  furnished  under 
seal  by  State  Superintendent.  Appeal  from  decisions 
lies  to  probate  court. 

School  Term  is  nine  months  in  districts  having  four 
hundred  or  more  children  of  school  age ;  eight  months 
in  those  having  between  thirty  and  four  hundred, 
and  at  least  five  months  in  all  other  districts  or  share 
in  school  fund  is  forfeited. 

Secret  Societies  are  prohibited  under  penalty  of  such 
punishment  as  the  Board  shall  deem  expedient. 

State  Board  of  Education  consists  of  four  members 
who  are  elected  by  the  people.  Has  general  super- 
vision of  normal  schools.     Is  body  corporate. 

Superintendent  of  Public  Instruction  is  elected  by 
the  people.  Shall  have  general  supervision  of  public 
instruction.  Is  member  and  secretary  of  State  Board 
of  Education.  Visits  the  educational  institutions. 
Sees  that  Boards  of  Education  and  school  districts 
observe  the  law.  Reports  annually  to  Governor. 
Prepares  course  of  studies  for  district  schools. 

Teachers  must  be  over  eighteen  and  have  certificates. 
Keep  record  and  report.  Attend  institute.  Retire- 
ment fund  is  provided. 

Text-Books  are  selected  by  School  Board,  not  to  be 
changed  in  five  years.  Free  to  indigent  children. 
May  be  free  and  loaned  under  vote  of  district.     May 

326 


Ch.  XI]  MINNESOTA  [§  152 

be  privately  owned  by  purchase  in  free  districts. 
Contracting  publisher  shall  file  copies  of  books  and 
give  bond. 

Truancy  is  guarded  against  by  county  truant  officer 
appointed  by  County  Commissioners  of  Schools,  and 
detailed  members  of  police  force  of  cities.  Boards 
of  Education  in  graded  school  and  upper  peninsula 
districts  may  appoint.  Parents  or  guardians  not 
complying  with  attendance  law  shall  be  guilty  of  a 
misdemeanor. 

Vaccination  is  not  provided  for  by  legislation,  and 
as  a  condition  precedent  to  attendance  cannot  be 
enforced  under  decisions. 

§  152.   Minnesota. 

Compulsory  Attendance  is  required  between  eight 
and  sixteen  in  public  or  private  school.  May  be  ex- 
cused for  satisfactory  reasons.  Persons  having  charge 
of  truant  child  may  be  prosecuted  for  misdemeanor 
in  not  complying  with  attendance  laws.  Emplojanent 
certificates  may  be  issued  to  children  between  four- 
teen and  sixteen. 

Corporal  Punishment  properly  administered  is  not 
unlawful. 

County  Board  of  Education  consisting  of  chairman 
of  County  Commissioners,  County  Superintendent  of 
Schools,  and  County  Treasurer,  has  charge  of  unor- 
ganized territory  to  provide  for  education  of  children 
therein.  Furnish  school  facilities  to  all  children  of 
school  age  therein. 

County    Superintendent   is    elected    by    the    county 

327 


§  152]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Cii.  XI 

electors.  Visits  and  instructs  schools.  Conducts 
.  teachers'   institutes. 

Electors  in  school  matters  may  be  women,  who  may 
also  hold  school  office. 

School  Age  is  between  five  and  twenty-one,  but  by 
vote  of  district  those  under  six  may  be  excluded. 

School  Board  in  common  districts  consists  of  three : 
a  chairman,  clerk,  and  treasurer,  elected  by  the  dis- 
trict. In  independent  districts  consists  of  six  directors, 
who  choose  their  own  officers.  Boards  fill  vacancies 
until  next  election.  They  have  general  charge  of 
the  business  of  the  district,  schoolhouses,  and  inter- 
ests of  schools.  Employ  teachers.  Visit  schools. 
Make  rules.  Prosecute  and  defend  actions.  Mem- 
bers are  peace  officers  in  common  and  consolidated 
districts.  Boards  in  independent  districts  may  estab- 
lish evening  public  schools,  establish  kindergartens 
open  to  children  between  four  and  six.  Suspend  or 
dismiss  pupils  for  cause. 

School  Districts  are  common,  special,  and  inde- 
pendent, all  of  which  are  public  corporations.  Com- 
mon are  numbered  consecutively  in  each  county. 
Joint  districts  are  those  situated  in  two  or  more  coun- 
ties. 

School  Term  in  common  schools  is  at  least  eight 
months;  smaller  schools  not  less  than  five  nor  more 
than  ten  months. 

Secret  Societies  unless  sanctioned  by  directors  are 
prohibited. 

Superintendent  of  Education  appointed  by  Governor 
with  advice  and  consent  of  Senate  has  general  super- 

328 


Ch.  XI]  MINNESOTA  [§  152 

vision  of  all  public  schools.  Has  deputy  and  three 
other  assistants,  a  rural  school  commissioner,  and  a 
supervisor  of  school  libraries. 

Teachers  must  hold  certificates.  Must  attend  in- 
stitutes. Shall  not  be  related  by  blood  or  marriage 
to  the  employing  director  except  on  unanimous  vote 
of  Board.  Contract  must  be  in  writing.  Must  keep 
registers  and  report.  Have  insurance  and  retirement 
fund. 

Text-Books  in  districts  are  provided  upon  vote  of 
district,  or  when  Directors  deem  it  advisable  they  may 
contract  for  and  purchase  them,  and  provide  for  free 
use  thereof,  or  sale  at  cost.  Such  adoptions  or  con- 
tracts shall  be  good  for  not  less  than  three  nor  more 
than  five  years,  during  which  time  the  books  shall 
not  be  changed.  Publishers  before  offering  shall  file 
copies  and  give  bond. 

Transportation  may  be  provided  in  consolidated 
districts,  or  board  may  be  provided  for  pupils.  Also 
in  other  districts  transportation  may  be  provided  for 
all  pupils  living  more  than  one-half  mile  from  school. 
Shall  provide  in  October  to  April  inclusive  transporta- 
tion for  all  pupils  in  joint  districts  living  two  miles 
or  more  from  school,  of  ages  between  six  and  sixteen. 

Truancy  is  guarded  against  by  truant  officers  who 
may  be  appointed  by  the  Board  in  any  district.  May 
arrest  truant  child  and  take  to  school.  May  receive  sal- 
ary but  no  fees.     Prosecutions  are  by  County  Attorneys. 

Vaccination  may  not  be  compelled,  and,  except 
during  epidemics,  children  may  not  be  excluded  from 
the  public  schools  for  non-vaccination. 

329 


§  153]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

§  153.   Mississippi. 

Board  of  Education  is  created  by  constitution,  to 
consist  of  Secretary  of  State,  Attorney  General  and 
Superintendent  of  Public  Instruction.  Decide  appeals 
finally.     General  charge  of  educational  interests. 

County  Board  of  Examiners  consist  of  County  Super- 
intendent and  two  teachers  appointed  by  him.  Ex- 
amine applicants  for  teachers'  certificates. 

County  School  Boards  consist  of  one  member  from 
each  supervisors'  district.  Fix  boundaries  and  locate 
schoolhouses. 

County  Superintendents  are  appointed  by  Board  of 
Education  unless  legislature  makes  the  office  elective. 
Employ  teachers  recommended  by  local  trustees. 
Fix  salaries  of  teachers  and  contract  with  them.  Visit 
schools.  Each  County  Superintendent  is  ex  officio 
president  of  the  local  County  School  Board. 

School  Age  is  between  five  and  twenty-one. 

School  Districts  are  separate  for  white  and  colored 
people.  In  counties  not  laid  off  by  townships  they 
shall  be  defined  by  streams,  lines  of  farms,  and  other- 
wise. 

School  Term  is  at  least  four  months,  but  at  least 
seven  months  in  separate  districts. 

School  Trustees  are  three  in  number  in  regular  dis- 
tricts, five  in  separate  districts  which  are  larger  ones. 
Select  teachers.     May  suspend  or  expel  pupils  for  cause. 

Separate  Schools  are  required  by  the  constitution. 

State  Board  of  Examiners  consists  of  three  teachers 
appointed  by  State  Superintendent.  Prepare  exam- 
ination questions  for  teachers,  and  grade  the  papers. 

330 


Ch.  XI]  MISSOURI  [§  154 

Superintendent  of  Public  Instruction  is  elected  by 
the  people.  Has  general  supervision  of  common  schools 
and  educational  interests.  Renders  opinions  when 
requested  by  County  Superintendents. 

Teachers  must  be  licensed,  and  at  least  seventeen 
years  of  age.  Contract  must  be  in  duplicate.  Keep 
registers  and  report.     May  suspend  pupils. 

Text-Book  Commission  consists  of  eight  educators 
appointed  by  Governor,  one  from  each  congressional 
district,  and  State  Superintendent.  Select  and  adopt 
uniform  series  of  text-books  not  to  be  changed  for  five 
years.  Advertise  for  bids  and  make  contracts.  Con- 
tracting pubhsher  shall  give  bond. 

Transportation  may  be  provided  in  consolidated 
districts. 

§  154.   Missouri. 

Compulsory  Attendance  is  required  between  eight 
and  fourteen  in  some  public,  private,  parochial  or 
parish  day  school.  Also  between  fourteen  and  six- 
teen unless  regularly  and  lawfully  employed.  Private 
instruction  at  home  may  be  a  substitute.  Tem- 
porarily excused  for  destitution,  or  for  mental  or  phys- 
ical infirmity.  Employment  certificates  are  issued 
to  children  between  fourteen  and  sixteen. 

County  Superintendent  is  elected  by  voters  of  county. 
Has  general  supervision  of  county  schools  except  in 
city,  town  and  village  school  districts  employing  a 
local  Superintendent.  Visits  schools.  Examines  teach- 
ers and  grants  certificates.  With  two  teachers  forms 
text-book  commission  in  some  counties. 

331 


§  154]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

County  Text-Book  Commission  adopts  from  State 
list  a  uniform  series  not  to  be  changed  in  five  years. 
Contracting  publisher  shall  file  copies  with  State 
Superintendent,  pay  filing  fee  and  give  bond. 

District  Board  of  three  members  elected  by  district 
govern  and  control  district.  Employ  teachers  but 
have  no  power  to  dismiss  them.  Visit  schools.  Con- 
sult with  teachers  and  exercise  general  supervision. 
Districts  having  two  hundred  or  more  children  may 
organize  into  a  town  or  city  district  as  a  body  corporate. 
Such  districts  have  six  directors.  Women  are  not 
eligible  to  the  office  of  Director. 

Night  Schools  may  be  established  by  Boards  of  Edu- 
cation in  larger  cities. 

School  Age  is  between  six  and  twenty,  but  if  funds 
are  sufficient  those  between  five  and  six  and  over 
twenty  may  be  admitted. 

School  Term  is  eight  months. 

Separate  Schools  must  be  established  for  white  and 
colored  children. 

State  Superintendent  is  elected  by  the  people.  Super- 
vises educational  funds.  Examines  teachers  and  grants 
certificates. 

State  Board  of  Education  consists  of  State  Superin- 
tendent, Governor,  Secretary  of  State  and  Attorney 
General.  Exercise  general  supervision  over  educa- 
tional interests. 

Teachers  must  have  certificates  before  beginning 
employment.  Must  keep  registers  and  report,  pend- 
ing which  last  month's  salary  is  withheld. 

Text-Books  may  be  free  to  indigent  children,  and 

332 


Ch.  XI]  MONTANA  [§  155 

free  to  all  children  in  any  district  upon  vote  of  elec- 
tors. 

Transportation  must  be  provided  pupils  resid- 
ing two  and  one-half  miles  or  more  from  school, 
and  upon  two-thirds  vote  of  district  may  be  pro- 
vided for  those  Hving  more  than  one-half  mile  from 
school. 

Truancy  is  guarded  against  in  districts  of  one  thou- 
sand or  more  population  by  attendance  officers  who  may 
arrest  without  warrant  any  truants  and  place  them  in 
school.  Parents,  guardians  or  other  persons  having 
control  of  such  children  may  be  prosecuted  for  mis- 
demeanor if  truancy  continues. 

§  155.   Montana. 

Compulsory  Attendance  is  required  between  eight 
and  fourteen  in  a  pubhc,  private  or  parochial  school 
at  least  sixteen  weeks  each  year.  Excused  for  infirmity, 
or  when  properly  instructed  at  home,  or  when  attend- 
ance would  be  a  hardship.  Also  applies  between 
fourteen  and  sixteen  unless  lawfully  and  regularly 
employed  on  certificate.  Parents  or  guardians  not 
complying  with  attendance  laws  may  be  convicted  of 
a  misdemeanor. 

Corporal  Punishment  may  be  inflicted,  but  except 
in  case  of  open  defiance  the  parent  or  guardian  must 
first  be  notified.  Such  punishment  must  be  without 
undue  anger,  and  in  presence  of  teacher  and  principal 
if  there  be  one. 

Comity  Board  of  Examiners  consists  of  County 
Superintendent,    and    two    others   who    are   or    have 

333 


§  155]         SYNOPSES   OF   PRINCIPAL  STATUTES    [Ch.  XI 

been  teachers.  Examine  applicants  and  issue  cer- 
tificates. 

County  Superintendent  may  be  of  either  sex.  Elected 
by  county  electors.  Has  general  superintendence  of 
county  schools.  Visits  schools  and  advises.  Presides 
at  institutes.  Acts  as  truant  officer  in  some  districts. 
Decides  controversies  subject  to  appeal  to  State  Super- 
intendent.    County  Attorney  is  legal  adviser. 

School  Age  is  between  six  and  twenty-one,  in  kin- 
dergartens three  to  six. 

School  Districts  are  of  three  classes :  first  class  with 
population  of  eight  thousand  or  more ;  second  class 
between  one  thousand  and  eight  thousand ;  third 
class  less  than  one  thousand.  First  class  have  seven 
trustees,  second  class  five,  third  class  three.  All 
are  bodies  corporate.  Joint  districts  are  those  l3dng 
in  two  or  more  counties. 

School  Term  is  at  least  three  months  in  isolated 
sections. 

School  Trustees  may  be  of  either  sex  and  are  elected 
by  district.  (For  number,  see  School  Districts.)  Have 
custody  of  school  property.  May  establish  night 
schools.  Prescribe  and  enforce  rules  for  schools. 
Employ  and  discharge  teachers.  Build  and  remove 
schoolhouses.  Suspend  or  expel  pupils.  Provide 
books,  clothing  and  medical  aid  for  indigent  pupils. 
Visit  schools.     County  Attorney  is  legal  adviser. 

Secret  Societies  are  prohibited  unless  sanctioned  by 
the  trustees.  Penalty  is  suspension,  expulsion,  or 
curtailment  of  school  honors. 

State  Board  of  Education  consists  of  eleven  members 

334 


Ch.  XI]  MONTANA  [§  155 

including  ex  officio  the  Governor,  State  Superintendent, 
and  Attorney  General.  Have  special  charge  of  the 
higher  State  educational  institutions. 

State  Board  of  Examiners  have  supervision  and  con- 
trol of  expenditures  for  higher  State  educational 
institutions. 

State  Text-Book  Commission  consists  of  seven  mem- 
bers ;  contract  for  text-books,  and  exact  bond  from 
publisher. 

Superintendent  of  Public  Instruction  is  elected  by  the 
people.  Has  general  supervision  of  the  public  schools. 
Prepares  courses  of  study.  Renders  decisions  to 
County  Superintendents.  Prepares  examination  ques- 
tions for  examination  of  teachers.  Advertises  for  bids 
on  text-books. 

Teachers  shall  hold  certificates,  and  contract  in 
writing  and  in  duplicate.  Must  be  at  least  eighteen. 
May  suspend  pupils  for  cause.  Keep  registers  and 
report.  Must  attend  institute.  Have  retirement 
fund. 

Text-Books  may  be  free  upon  vote  of  district,  in 
which  event  privilege  of  purchase  at  cost  for  private 
ownership  shall  be  accorded. 

Transportation  is  provided  to  other  schools  when 
district  school  is  closed. 

Truancy  is  guarded  against  by  truant  officers  who 
shall  be  appointed  in  districts  of  the  first  and  second 
class  (see  School  Districts),  and  may  be  appointed  in 
those  of  third  class,  but  if  not  appointed  County 
Superintendent  shall  act  as  such.  May  arrest  truants 
and  place  them  in  school. 

335 


§  156]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

§  156.   Nebraska. 

Compulsory  Attendance  is  required  between  seven 
and  fifteen,  for  at  least  twelve  weeks  in  the  smaller 
districts,  and  between  seven  and  sixteen  in  city  or 
metropolitan  districts.  The  attendance  is  to  be  in  a 
public,  private  or  parochial  school,  unless  instructed 
at  home  or  elsewhere.  Excused  if  regularly  and  law- 
fully employed  if  fourteen,  or  mentally  or  physically 
incapacitated,  or  lives  more  than  two  miles  from  school 
and  free  transportation  is  not  provided.  If  blind  or 
deaf  must  attend  between  seven  and  eighteen. 

County  Rural  School  Districts  are  confined  to  coun- 
ties of  less  than  seven  thousand  population.  Are 
bodies  corporate  and  in  charge  of  a  Board  of  Education 
consisting  of  five  members  elected  at  large.  They 
estabhsh  a  uniform  system  of  public  schools,  main- 
tain and  manage  them.  May  borrow  money  and 
issue  bonds. 

County  Superintendent  is  elected  by  county  electors. 
Visits  schools.  Forms  new  districts  and  changes 
boundaries.  Examines  candidates  for  teachers'  cer- 
tificates. 

District  Officers  consist  of  a  moderator,  director,  and 
treasurer  elected  by  district.  The  moderator  shall 
preside  at  meetings  of  the  district.  The  director 
with  concurrence  of  one  other  member  hires  teachers. 
Board  has  general  management  and  makes  rules  for 
schools.  May  suspend  pupils.  Districts  of  more 
than  one  hundred  and  fifty  children  of  school  age  may 
elect  a  district  board  of  six  trustees  upon  vote  of 
electors. 

336 


Ch.  XI]  NEBRASKA  [§  156 

Electors  may  be  either  male  or  female  of  specified 
qualifications. 

School  Age  is  between  five  and  twenty-one. 

School  Districts  are  portions  of  a  county  and  are 
bodies  corporate.  Large  cities  are  separate  districts. 
(See  County  Rural  School  Districts.) 

School  Term  is  at  least  four  months  in  districts  hav- 
ing less  than  twenty  pupils,  not  less  than  seven  months 
in  districts  having  between  twenty  and  seventy-five 
pupils,  and  not  less  than  nine  months  in  larger  dis- 
tricts. 

Secret  Societies  are  absolutely  prohibited  as  school 
organizations.     Penalty  is  suspension  or  expulsion. 

State  Superintendent  organizes  teachers'  institutes. 
Visits  schools.  Decides  questions  of  school  law.  Pre- 
pares questions  for  examination  of  teachers. 

Teachers  must  have  certificates.  Must  attend  in- 
stitutes.    Make  monthly  report  to  director. 

Text-Books  are  purchased  for  the  district  by  the 
local  School  Board,  and  are  not  necessarily  adopted  for 
a  particular  period.  They  are  loaned  to  pupils  free 
of  charge. 

Truancy  is  guarded  against  by  truant  officers  ap- 
pointed by  Boards  of  Education  in  the  larger  districts, 
who  may  apprehend  and  take  home  or  to  school  any 
truant  child.  Parents  or  guardians  may  be  convicted 
of  a  misdemeanor  if  the  truancy  continues. 

Transportation  in  a  safe,  inclosed,  and  heated  con- 
veyance shall  be  provided  in  consolidated  districts,  for 
all  pupils  living  two  miles  or  more  from  school.  May 
be  provided  in  any  district  by  two-thirds  vote. 

337 


§  157]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

§  157.   Nevada. 

Compulsory  Attendance  is  required  between  eight 
and  sixteen  in  a  public  or  private  school  or  at  home. 
Excused  for  mental  or  physical  infirmity,  completion 
eighth  grade,  or  when  the  child's  labor  is  necessary 
to  support  itself  or  parent,  or  when  distance  from 
school  is  deemed  too  great  by  the  Deputy  Superintend- 
ent. Children  entitled  to  attend  schools  established 
by  the  United  States,  and  where  the  expense  of  tuition, 
board  and  clothing  of  the  pupils  therein  are  borne 
by  the  United  States,  compulsory  attendance  therein 
is  required  of  all  children  between  eight  and  eighteen 
who  are  eligible  to  attend  such  school.  If  the  United 
States  does  not  furnish  free  transportation  all  children 
living  more  than  ten  miles  from  such  schools  are  excused 
from  attendance. 

Educational  Districts  are  four  in  number,  comprising 
one  or  more  counties  in  each,  and  in  each  of  which 
a  Deputy  Superintendent  has  charge  of  supervision. 
They  are  appointed  by  the  State  Board  of  Education. 
They  visit  schools  and  advise  teachers.  Conduct 
examinations  for  teachers'  certificates. 

Electors  are  of  either  sex. 

School  Age  is  between  six  and  eighteen,  in  kinder- 
gartens between  four  and  six. 

School  Districts  are  every  village,  town,  or  incor- 
porated city.  Those  employing  ten  or  more  teachers 
are  of  the  first  class,  smaller  are  of  second  class.  Joint 
districts  are  parts  of  two  or  more  counties. 

School  Term  is  at  least  six  months,  or  at  least  eight 
months  if  funds  are  sufficient. 

338 


Ch.  XI]  NEVADA  [§  157 

School  Trustees  are  five  in  larger  districts  and  three 
in  districts  of  less  than  fifteen  hundred  school  children. 
Are  body  corporate  and  are  elected  by  district.  Upon 
votes  of  heads  of  families  may  build,  purchase,  rent, 
buy  or  sell  schoolhouses,  change  locations,  manage 
and  control  school  property.  Employ  teachers.  Sus- 
pend pupils.  Visit  schools.  Women  are  eligible. 
District  Attorney  is  legal  adviser. 

State  Board  of  Education  consists  of  Governor  as 
president,  Superintendent  of  Public  Instruction  as 
secretary,  and  president  of  the  University.  Prescribe 
and  enforce  the  courses  of  study.  Grant  certificates 
and  life  diplomas  to  teachers.  Prepare  questions  for 
teachers'  examinations. 

Superintendent  of  Public  Instruction  is  elected  by  the 
people.  Visits  schools,  conducts  institutes,  advises 
with  teachers. 

Teachers  must  have  certificates  and  take  oath.  Con- 
tract is  to  be  in  writing.  Shall  attend  institute. 
Retirement  fund  is  established.  Shall  not  suspend 
or  expel  any  pupil  under  fourteen. 

Text-Book  Commission  consists  of  State  Board  of 
Education  and  four  others  appointed  by  the  Governor. 
Receive  bids  and  award  contracts  for  text-books. 
Contracting  publisher  shall  give  bond. 

Text-Books  are  loaned  to  pupils  free  of  charge. 

Transportation  may  be  provided. 

Truancy  is  defined  as  absence  from  school  more  than 
three  days  without  valid  excuse.  Notice  is  then  sent 
to  parent  or  guardian  who  for  subsequent  offense  may 
be   convicted   of   misdemeanor.     Boards   of   trustees 

339 


§  158]         SYNOPSES   OF   PRINCIPAL  STATUTES    [Ch.  XI 

may  appoint  attendance  officers  who  may  arrest  with- 
out a  warrant  any  truant  child  and  dehver  to  teacher, 
parent,  guardian  or  other  person  in  control  of  child. 

§  158.   New  Hampshire. 

Compulsory  Attendance  is  required  of  all  children 
between  eight  and  fourteen  years  of  age,  and  also  be- 
tween fourteen  and  sixteen  where  education  is  deficient, 
unless  excused  by  the  School  Board  for  infirmity,  or 
for  receiving  equal  instruction  in  a  private  school,  ap- 
proved by  the  district  school  board,  for  an  equal  period. 

Districts  legally  organized  are  corporations.  May 
borrow  money  upon  promissory  notes  or  bonds. 
May  fix  salaries  of  School  Board  and  truant  officers. 
May  raise  money  to  purchase  wagons  for  transporta- 
tion of  pupils.  May  contract  with  literary  institu- 
tion for  furnishing  tuition.  May  maintain  joint  schools 
with  other  districts.  May  not  fix  length  of  school 
year,  salaries  of  teachers,  nor  establish,  locate  or  dis- 
continue common  schools.  Officers  are  moderator, 
clerk  and  school  board  of  three  persons,  treasurer,  and 
one  or  more  auditors  and  other  necessary  officers  and 
agents. 

Electors  in  district  school  meetings  are  male  or  female 
who  are  qualified,  and  have  three  months'  residence. 

Employment  of  Children  over  fourteen  and  under 
sixteen  permitted  on  certificate. 

Evening  Schools  shall  be  established  upon  petition  of 
five  per  cent,  of  the  legal  voters  of  any  city  or  town 
of  more  than  five  thousand  inhabitants.  Are  under 
supervision  of  local  school  board. 

340 


Ch.  XI]  NEW  HAMPSHIRE  [§158 

School  Age  is  from  six  to  sixteen,  with  compulsory- 
attendance  between  eight  and  fourteen. 

School  Board  shall  select  and  hire  teachers,  provide 
schools,  and  may  provide  conveyances  for  pupils. 
May  dismiss  teachers  after  hearing  granted.  May 
prescribe  regulations  for  schools.  Shall  furnish  blank 
registers  to  teachers.  May  grant  use  of  schoolhouse 
for  writing  or  singing  school,  and  for  religious  and  other 
meetings  not  to  conflict  with  school  use. 

School  Terms  are  to  be  such  as  will  best  subserve 
the  interests  of  education. 

State  Superintendent  at  annual  salary  not  to  exceed 
four  thousand  dollars.  Three  deputies,  one  of  whom 
shall  be  a  woman,  are  appointed  at  annual  salary  not 
to  exceed  twenty-five  hundred  dollars.  Shall  hold 
examinations  for  teachers,  at  annual  cost  not  to  exceed 
three  hundred  dollars.  Shall  recommend  text-books 
to  school  boards. 

Teachers  must  have  certificates,  which  may  be  issued 
without  examination  to  those  who  have  served  three 
school  years.  Must  keep  register  and  return  to  school 
board,  pending  which  twenty  dollars  of  wages  are 
withheld.  Pension  for  any  retired  female  teacher 
at  fifty-five  years,  who  has  served  thirty  years  as 
teacher  in  this,  or  any  State.  Male  teachers  pensioned 
at  sixty  years  having  taught  thirty-five  years.  Either 
sex  having  taught  fifteen  years  prior  to  age  fixed,  are 
pensioned  pro  rata.  .. 

Text-Books  and  other  supplies  shall  be  loaned  free 
of  charge  to  pupils  at  expense  of  city  or  town,  and 
furnish  at  cost  such  as  are  desired  for  private  owner- 

341 


§  159]         SYNOPSES   OF  PRINCIPAL  STATUTES       [Ch.  XI 

ship.  They  must  not  be  paid  for  out  of  school  money, 
but  selectmen  must  assess  extra  for  them. 

Truancy  is  guarded  against  by  truant  officers  ap- 
pointed by  the  local  school  board,  and  have  authority 
without  a  warrant  to  take  and  place  in  school  any 
children  violating  compulsory  attendance  law.  Such 
officers  cannot  be  paid  out  of  school  money.  Districts 
may  make  legal  by-laws  concerning  habitual  truants. 

Vaccination  required  of  all  children  attending  public, 
private  or  parochial  schools  unless  they  hold  certificate 
of  local  board  of  health  that  they  are  unfit  subjects,  or 
have  had  smallpox. 

§  159.  New  Jersey. 

Bible  reading  and  repeating  Lord's  Prayer  shall  be 
the  limit  of  religious  exercises. 

Boards  of  Education  consist  of  five  members  in  dis- 
tricts with  population  of  less  than  forty-five  thousand, 
and  nine  members  in  larger  ones,  but  number  may  be 
reduced  to  five  or  three  upon  vote  of  district.  Have 
control  and  management  of  school  property,  and  hold 
title  to  it.  Make  rules  for  schools.  May  borrow 
money  on  notes.  Employ  and  dismiss  principals, 
teachers,  janitors,  mechanics  and  laborers.  Suspend 
or  expel  pupils.  Provide  text-books  and  necessary 
school  supplies. 

Commissioner  of  Education  is  appointed  by  Governor. 
Salary  ten  thousand  dollars  per  annum.  Appoints 
four  Assistant  Commissioners  at  salaries  of  four  thou- 
sand five  hundred  dollars  each.  One  shall  act  in  his 
place   in  his  absence,  one  shall  act  as  supervisor  of 

342 


Ch.  XI]  NEW  JERSEY  [§  159 

secondary  education,  one  as  supervisor  of  elementary 
education,  and  one  as  supervisor  of  industrial  educa- 
tion. Designates  one  to  hear  controversies  on  school 
law.  Has  supervision  of  all  pubUc  schools  of  the 
State. 

Compulsory  Attendance  is  required  between  seven 
and  sixteen  in  a  day  school,  unless  receiving  equivalent 
instruction  elsewhere.  Above  fourteen  may  be  granted 
an  "  age  and  schooling  certificate."  Parent,  guardian 
or  other  person  having  custody  and  control  of  a  child 
between  seven  and  sixteen  failing  to  comply  with 
attendance  law  shall  be  deemed  a  disorderly  person 
and  be  subject  to  fine  or  imprisonment  or  both. 

Corporal  Punishment  is  forbidden  by  statute. 

County  Superintendents  are  appointed  by  Commis- 
sioner of  Education.  Exercise  supervision  over  schools 
of  county  except  city  schools  having  a  Superintendent. 
Visit  schools. 

Evening  Schools  may  be  established  in  any  district, 
open  to  persons  over  twelve.  In  such  schools  for 
foreign-born  open  to  those  over  fourteen. 

School  Age  is  between  five  and  twenty,  also  older 
persons  if  Board  of  Education  so  provides.  No  exclusion 
on  account  of  religion,  nationality  or  color.  Age  in 
kindergartens  is  between  four  and  seven. 

School  Districts  are  each  township,  city,  incorporated 
town  and  borough.     They  are  bodies  corporate. 

School  Term  is  not  less  than  nine  months. 

State  Board  of  Education  consists  of  eight  members 
no  two  of  whom  shall  be  residents  of  the  same  county, 
appointed  by  the  Governor.     Has  control  of  the  higher 

343 


§  160]         SYNOPSES   OF   PRINCIPAL  STATUTES    [Ch.  XI 

State  educational  institutions  and  general  supervision 
of  educational  matters.  Decides  appeals  from  Com- 
missioner of  Education.     Reports  to  legislature. 

State  Board  of  Examiners  consists  of  Commissioner 
of  Education,  principals  of  State  normal  schools,  a 
County  Superintendent,  and  a  City  Superintendent  of 
schools.     Hold  examinations  and  grant  certificates. 

Teachers  must  hold  certificates  and  be  at  least 
eighteen.  Keep  register.  May  suspend  pupils.  Par- 
ticipate in  pension  or  retirement  fund  after  thirty- 
five  years'  service  under  certain  conditions,  also  for 
shorter  service. 

Text-Books  shall  be  furnished  free  of  cost. 

Transportation  may  be  provided  for  pupils  living 
remote  from  school. 

Truancy  is  guarded  against  by  attendance  officers 
in  each  district  who  shall  take  each  truant  to  teacher, 
parent  or  guardian. 

Vaccination  may  be  required  of  teachers  and  pupils 
unless  certificate  of  unfitness  be  furnished. 

§  160.   New  Mexico. 

Boards  of  Education  of  five  members  have  charge 
of  school  affairs  in  each  incorporated  city,  town  or 
village.  Control  schools  and  school  property.  Are 
bodies  corporate.  May  hire  City  or  District  Superin- 
tendents. 

Compulsory  Attendance  is  required  between  seven 
and  fourteen  in  some  public,  private  or  denominational 
school,  unless  residing  more  than  three  miles  from 
school  or  physically  incapacitated.     Failure  may  sub- 

344 


Ch.  XI]  NEW  MEXICO  [§  160 

ject  parent  or  guardian  to  fine  or  imprisonment.  Age 
for  the  deaf  and  mute  is  between  eight  and  twenty-one. 
Age  for  the  bhnd  is  between  five  and  twenty-one. 

County  Superintendent  is  elected  by  the  county 
electors.  Takes  oath  and  gives  bond.  Has  jurisdic- 
tion over  all  county  public  schools  except  in  cities. 
Visits  schools.  Supervises  methods.  Consults  with 
directors.     Enforces  compliance  with  law. 

Electors  may  be  women  unless  woman  suffrage  is 
suspended  by  a  majority  petition  of  the  district. 

School  Age  is  between  five  and  twenty-one. 

School  Directors  are  three  in  number.  They  control 
rural  districts  which  are  other  than  those  of  incorpo- 
rated cities,  towns  and  villages. 

School  Districts  are  bodies  corporate.  They  are 
either  municipal  or  rural. 

School  Term  is  not  less  than  seven  nor  more  than 
nine  months  in  rural  districts,  and  not  less  than  nine 
months  in  municipal  districts. 

State  Board  of  Education  consists  of  Governor,  State 
Superintendent  and  five  others  appointed  by  Governor. 
Grant,  renew,  and  revoke  teachers'  certificates,  adopt 
text-books  and  uniform  course  of  study,  exercise 
general  control  over  public  schools.  May  contract 
with  publishers  for  text-books. 

Superintendent  of  Public  Instruction  of  either  sex  is 
elected  by  the  people.  Holds  teachers'  institutes  each 
year  for  at  least  two  weeks.  Has  general  supervision 
of  public  education.  Shall  give  written  opinions  to 
County  Superintendents  upon  school  questions,  upon 
which  he  may  advise  with  the  Attorney  General. 

345 


§  161]         SYNOPSES   OF  PRINCIPAL  STATUTES    [Ch.  XI 

Teachers  must  hold  certificates.  Must  furnish  physi- 
cian's certificate  of  freedom  from  tuberculosis.  Keep 
records  and  make  report. 

Text-Books  are  loaned  free  to  indigent  children. 

Vaccination  is  a  condition  precedent  to  attend- 
ance. 

§  161.   New  York. 

Boards  of  Education  of  three  to  nine  members  control 
in  union  free  school  districts  or  cities.  Are  bodies 
corporate.  Duties  are  practically  same  as  School 
Trustees,  (q.v.).  May  maintain  night  schools  free  to  all 
residents,  and  kindergartens  free  to  resident  children 
between  four  and  six. 

Central  Rural  Districts  may  be  laid  out  in  any  terri- 
tory exclusive  of  city  school  districts.  Transportation 
of  pupils  may  be  provided. 

Compulsory  Attendance  in  districts  of  five  thousand 
or  more  population  employing  a  Superintendent  of 
Schools,  is  required  of  those  in  proper  physical  and 
mental  condition,  between  seven  and  fourteen,  and 
between  fourteen  and  sixteen  unless  regularly  and  law- 
fully employed  on  a  certificate.  In  other  districts 
the  compulsory  age  is  between  eight  and  fourteen, 
and  between  fourteen  and  sixteen  unless  regularly  and 
lawfully  employed.  This  law  includes  blind  children. 
Employed  boys  of  deficient  education,  between  four- 
teen and  sixteen  must  attend  night  school.  Equivalent 
instruction  elsewhere  than  in  public  school  may  be 
substitute.  Parent  or  guardian  of  truant  may  be 
prosecuted  for  misdemeanor, 

346 


Ch.  XI]  NEW  YORK  [§  161 

Commissioner  of  Education  is  chief  executive  officer 
of  State  system  of  education  and  Board  of  Regents. 
Salary  is  seven  thousand  five  hundred  dollars  annually. 
Has  general  supervision  of  schools.  Advises  school 
officers.  May  issue  teachers'  certificates.  Prescribes 
regulations  for  examination  of  teachers  subject  to 
approval  of  Regents.     Appoints  institutes. 

District  Superintendents  are  elected  by  board  of 
school  directors ;  if  they  fail  to  elect  within  specified 
time  the  county  judge  shall  appoint.  May  be  of 
either  sex  and  must  become  a  resident  of  the  county. 
Sees  that  boundaries  of  district  are  properly  described, 
and  corrects  them.  Assembles  teachers  for  conference. 
Advises  trustees.  Examines  and  licenses  teachers,  and 
examines  charges  against  them.  Appeal  lies  to  Com- 
missioner of  Education. 

Indian  Children  between  six  and  sixteen  are  subject 
to  compulsory  attendance  law,  and  parent  or  guardian 
subject  to  penalty  for  non-attendance  of  children. 

Industrial  Schools  may  be  established  in  any  city 
by  the  officer  or  officers  having  charge  of  the  public 
schools. 

Nautical  School  is  established  at  New  York  city. 

School  Age  is  between  five  and  twenty-one. 

School  Directors  are  two  in  number  elected  for  each 
town.  Those  within  a  supervising  district  together 
constitute  a  board  of  school  directors. 

School  Districts  are  parts  of  commissioner  districts. 
They  are  cities,  union  free  school  districts,  common 
school  districts,  central  rural  districts,  and  school 
neighborhoods. 

347 


§  161]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

School  Neighborhoods  are  territories  adjoining  other 
States  in  which  the  children  are  authorized  to  attend 
the  schools  of  such  other  States. 

School  Term  is  fixed  by  trustees,  but  shall  be  at 
least  one  hundred  and  sixty  days  of  actual  school. 

School  Trustees  shall  be  from  one  to  three  trustees 
as  the  district  determines.  Union  free  school  districts 
have  from  three  to  nine  as  the  district  determines. 
Both  are  bodies  corporate.  Purchase  or  lease  sites, 
provide  rooms,  apparatus  and  supplies.  Have  custody 
and  keeping  of  schoolhouses,  sites  and  appurtenances. 
Contract  with  teachers,  fix  compensation  and  school 
term.     Establish  rules,  prescribe  courses  of  studies. 

Separate  Schools  may  be  established  for  colored 
children  upon  vote,  but  no  person  shall  be  refused 
admission  into  or  be  excluded  from  any  public  school 
on  account  of  race  or  color.  Shall  be  established  for 
Indian  children  on  reservations. 

Supervisory  Districts  are  those  covering  the  territory 
embraced  in  school  commissioner  districts  outside  of 
cities,  and  of  school  districts  of  five  thousand  or  more 
population,  which  employ  a  Superintendent. 

Teachers  must  be  at  least  eighteen,  licensed,  and 
have  contract  in  writing.  Shall  not  be  related  by 
blood  or  marriage  to  employing  trustees  or  Board  of 
Education  except  on  two-thirds  vote  of  district.  Re- 
tirement fund  is  established. 

Temporary  School  Districts  may  be  established  out- 
side of  cities  and  union  districts.  They  apply  to  sec- 
tions of  temporary  habitation  such  as  camps.  Open 
free  to  children  and  adults. 

348 


Ch.  XI]  NORTH  CAROLINA  [§  162 

Text-Books  are  designated  in  cities  and  union  free 
school  districts  by  Boards  of  Education,  and  in  common 
school  districts  at  an  annual  school  meeting  bj^  two- 
thirds  vote  of  legal  voters  present  and  voting.  Such 
designations  are  for  five  years  unless  superseded  by 
three-fourths  vote.  Are  free  in  union  school  districts 
upon  majority  vote. 

Truancy  is  guarded  against  by  attendance  officers 
appointed  by  school  authorities  in  each  city,  union 
free  school  district,  or  common  school  district.  Town 
boards  also  appoint  such  officers.  They  may  arrest 
without  warrant  any  truant  child  between  seven  and 
sixteen  and  deliver  to  teacher,  or  in  case  of  habitual 
truants  to  a  police  magistrate. 

§  162.   North  Carolina. 

Compulsory  Attendance  for  deaf  children  is  five 
school  terms  of  nine  months,  between  eight  and  fif- 
teen. Is  required  of  other  children  between  eight 
and  twelve  for  four  months  of  each  term,  in  a  pub- 
lic, private  or  church  school  which  renders  such 
reports  as  are  required  of  the  public  schools. 
Age  for  compulsory  attendance  may  be  extended  in 
any  county.  Exemptions  are  for  mental  or  phys- 
ical incapacity,  or  where  the  child  resides  two  and 
one-half  or  more  miles  from  school,  or  where  for 
extreme  poverty  the  child's  labor  is  necessary  to 
the  support  of  itself  or  parents,  or  where  poverty 
deprives  the  child  of  books  and  clothes.  Children  be- 
tween twelve  and  thirteen  may  be  employed  on 
certificates. 

349 


§  162]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

County  Board  of  Education  is  composed  of  three 
members  appointed  by  the  legislature.  Has  corporate 
powers.  Controls  the  time  that  schools  may  be  in 
session.  Builds  and  repairs  schoolhouses.  Makes  rules 
for  schools. 

County  Superintendent  is  elected  by  the  County 
Board.  Visits  schools.  Is  ex  officio  secretary  of 
County  Board.     Holds  township  teachers'  meetings. 

School  Age  is  between  six  and  twenty-one. 

School  Districts  are  divisions  of  townships,  or  may 
be  formed  out  of  contiguous  portions  of  counties. 

School  Committee  for  township  or  district  is  composed 
of  three.  Have  care  of  school  property.  Employ  and 
dismiss  teachers  upon  charges,  notice  and  hearing. 
Women  are  eligible  to  serve  on  committees  of  rural 
and  graded  schools. 

School  Term  is  at  least  six  months. 

Separate  Schools  are  provided  for  white,  colored,  and 
Indian  children.  However  remote  the  strain,  children 
of  negro  blood  shall  not  be  classed  as  white. 

State  Board  of  Education  consists  of  Governor  as 
president.  Lieutenant  Governor,  Secretary  of  State, 
Treasurer,  Auditor,  Superintendent  of  Public  Instruc- 
tion as  secretary,  and  Attorney  General.  Has  cor- 
porate powers.     Makes  rules  for  schools. 

Superintendent  of  Public  Instruction  directs  operation 
of  school  system  and  enforces  the  law.  Publishes 
school  law.  Is  secretary  of  text-book  commission  and 
officer  in  many  educational  institutions. 

Teachers  are  elected  by  the  school  committee  and 
approved  by  the  County  Superintendent.     They  must 

350 


Ch.  XI]  NORTH  DAKOTA  [§  163 

be  at  least  eighteen  and  hold  certificates.  Keep  records 
and  report.  Attend  institute  every  two  years.  Dis- 
miss pupils  who  are  immoral,  or  who  willfully  and  per- 
sistently violate  rules. 

Transportation  may  be  provided  in  consolidated 
districts. 

Truancy  is  guarded  against  by  attendance  officers 
appointed  by  County  Board  of  Education  for  each  town- 
ship. After  notice  and  failure  to  render  satisfactory 
excuse  the  parent  or  guardian  of  a  truant  child  may  be 
prosecuted  and  fined,  and  for  non-payment  thereof 
may  be  imprisoned. 

§  163.   North  Dakota. 

Bible  shall  not  be  considered  sectarian  nor  excluded. 
Teacher  may  read  from  it.  Pupils  shall  not  be  re- 
quired to  read  it,  nor  to  be  present  when  read,  contrary 
to  wishes  of  parent  or  guardian. 

Boards  of  Education  consisting  of  five  members 
have  management  of  school  affairs  in  special  districts. 
Must  keep  school  open  not  less  than  seven  nor  more 
than  ten  months  each  year. 

Compulsory  Attendance  is  required  between  eight  and 
fifteen  in  public,  private  or  parochial  school.  Feeble- 
minded, blind,  and  deaf  between  seven  and  twenty- 
one.  Excused  if  no  school  within  two  and  one-half 
miles  unless  transportation  is  provided,  or  if  child's 
help  is  necessary  to  support  of  family,  or  physically 
or  mentally  incapacitated,  or  has  already  acquired  the 
taught  branches.  Parents,  guardians  or  other  person 
having  charge  of  truants  may  be  convicted  of  a  mis- 

351 


§  1G3]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

demeanor.  Children  between  fourteen  and  sixteen 
may  be  employed  on  certificate. 

County  Superintendent  is  elected  by  voters  of  each 
county.  Has  general  superintendence  of  schools  in 
his  county.  Visits  schools.  Holds  annual  meeting  of 
school  officers.     Decides  controversies. 

School  Age  is  between  six  and  twenty-one,  in  kinder- 
gartens from  four  to  six. 

School  Directors  are  three  in  number.  Have  general 
charge,  direction  and  management  of  the  schools,  and 
property.  Make  rules.  Suspend  or  expel  pupils. 
Employ  teachers  but  except  by  unanimous  vote  not 
those  related  by  blood  or  marriage  to  a  director. 

School  Districts  are  bodies  corporate  and  consist  of 
not  less  than  one  congressional  township,  or  one  civil 
township.  Any  city,  or  incorporated  or  platted  town 
or  village  may  constitute  a  special  school  district  in 
which  a  Board  of  Education  of  five  members  shall  have 
management.  Independent  school  districts  are  those 
of  larger  cities,  with  a  director  from  each  ward. 

State  Board  of  Education  is  composed  of  president  of 
University,  president  of  Agricultural  College,  State 
Superintendent  of  Public  Instruction,  State  Inspector  of 
Graded  and  Rural  Schools,  State  High  School  Inspector, 
State  Normal  School  president,  and  an  industrial  school 
president,  a  County  Superintendent  and  a  citizen. 

Superintendent  of  Public  Instruction  is  elected  by  the 
people,  has  general  supervision  of  schools.  Prescribes 
course  of  study.     Advises  County  Superintendents. 

Teachers  must  hold  certificates  and  shall  not  receive 
less  than  forty-five  dollars  per  month.     Keep  register 

352 


Ch.  XI]  OHIO  [§  164 

and  reports.  Attend  institutes.  May  suspend  pupils 
for  not  more  than  five  days.  Have  insurance  and  re- 
tirement fund. 

Text-Books  may  be  loaned  free  to  pupils  or  sold  at 
cost.  Shall  not  be  adopted  for  more  than  three  years. 
Contracted  for  by  school  board  or  Board  of  Education 
of  every  district.  Contracting  publishers  shall  file 
copies  and  bond. 

Transportation  may  be  provided  in  any  district, 
and  shall  be  provided  in  consolidated  districts. 

§  164.    Ohio. 

Boards  of  Education  of  districts  vary  from  two  to 
seven  members,  who  furnish  necessary  schoolhouses 
•and  grounds  and  keep  them  in  repair.  May  open 
schoolhouses  for  educational  meetings  or  any  other 
lawful  purpose  not  interfering  with  schools.  Prescribe 
courses  of  study.  Have  control  of  all  public  schools 
in  district.     Fix  salaries  of  teachers. 

City  Board  of  Examiners  of  three  members,  for  each 
city  school  district  is  appointed  by  Board  of  Education. 

Compulsory  Attendance  is  required  between  eight 
and  fourteen  and  from  fourteen  to  sixteen  unless 
regularly  employed,  in  a  public,  private  or  parochial 
school  for  at  least  twenty-eight  weeks.  Excused  for 
mental  or  physical  infirmity,  or  for  receiving  competent 
instruction  at  home.  Employment  certificates  are 
issued  between  fourteen  and  sixteen. 

County  Board  of  Examiners  of  three  are  appointed 
by  judge  of  probate.  Hold  public  meetings  for  ex- 
amination for  teachers'  certificates. 

353 


§  164]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

Evening  Schools  shall  be  established  in  any  district 
upon  petition  of  twenty-five  youths  of  school  age. 

School  Age  is  between  six  and  twenty-one. 

School  Districts  are  mainly  city,  village,  and  town- 
ship ;   and  all  others  are  special. 

School  Term  is  at  least  twenty-eight  weeks. 

Secret  Societies  are  prohibited  under  penalty  of 
fine  of  ten  to  twenty-five  dollars  for  membership 
therein. 

State  Board  of  Examiners  consists  of  five  persons, 
not  more  than  three  of  the  same  political  party.  Issue 
life  certificates  to  teachers. 

State  Commissioner  of  Common  Schools  is  elected 
biennially.  Supervises  school  fund.  Distributes  laws. 
Reports  to  Governor. 

Teachers  may  be  appointed  for  one  to  four  years. 
Exercise  care  for  school  property,  strive  to  guard 
health  of  pupils.     Have  retirement  fund. 

Text-Books  are  adopted  for  five  years.  May  be 
loaned  free  of  charge  by  the  Board  of  any  district. 

Transportation  must  be  provided  when  schools  of 
sub-districts  are  suspended.  May  be  provided  in 
special  school  districts,  also  in  village  school  dis- 
tricts. 

Truancy  is  guarded  against  by  truant  officers  who 
may  take  into  custody  any  truant  and  place  him  in 
school.  Parents  or  guardians  may  be  prosecuted  for 
permitting  truancy. 

Vaccination  is  within  control  of  the  Board  of  each 
district,  and  may  be  made  a  condition  precedent  to 
attendance. 

354 


Ch.  XI]  OKLAHOMA  [§  1G5 

§  165.    Oklahoma. 

Boards  of  Education  control  in  independent  districts, 
one  member  being  elected  from  each  ward,  except  in 
cities  of  over  fifty  thousand  two  are  elected  from  each 
ward  provided  the  wards  do  not  exceed  five.  Women 
may  serve. 

Boards  of  Examiners  in  each  county  composed  of 
County  Superintendent  and  two  others,  examine  ap- 
plicants and  issue  teachers'  certificates. 

Common  School  Districts  are  corporations.  Joint 
districts  are  those  lying  in  two  or  more  counties. 
Independent  districts  are  the  larger  cities  and  towns. 
Are  bodies  corporate. 

Compulsory  Attendance  is  required  between  eight 
and  sixteen,  of  all  children  and  wards  unless  physically 
or  mentally  incapacitated,  at  least  sixty-six  per  cent 
of  the  school  days,  in  a  public,  private,  or  other  school. 
Parents  or  guardians  not  observing  this  law  may  be 
prosecuted.  Employment  certificates  may  be  issued  to 
children  under  sixteen.  Deaf  children  between  seven 
and  twenty-one  must  attend  school  for  deaf. 

County  Superintendent  supervises  the  public  schools 
of  the  county.     Visits  schools.     Forms  districts. 

District  Boards  consist  of  three,  a  director,  clerk, 
and  member,  elected  by  the  voters  of  the  district. 
Purchase  or  lease  sites.  Have  care  of  schoolhouse  and 
property.  Contract  with  teachers  in  writing,  and  they 
shall  not  be  related  to  any  member  of  the  Board.  Pro- 
vide school  supplies. 

School  Term  is  not  less  than  three  months,  and  is 
of  such  length  as  may  be  voted  by  the  district. 

355 


§  166]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

Secret  Societies  are  prohibited  under  penalty  of  sus- 
pension or  expulsion. 

Separate  Schools  are  provided  for  colored  children, 
declared  to  be  those  who  possess  any  quantum  of  negro 
blood.  It  is  illegal  to  attend  any  school  established  for 
a  different  race. 

State  Board  of  Education  consists  of  seven  members 
including  the  State  Superintendent  and  six  others 
appointed  by  Governor.  Have  supervision  of  the 
higher  State  educational  institutions.  Supervise  pubhc 
schools. 

State  Superintendent  has  supervision  and  manage- 
ment of  the  educational  interests.  Gives  written  opin- 
ion upon  request  of  City  or  County  Superintendent. 
Issues  teachers'  certificates  to  graduates  of  high  schools 
and  agricultural  schools  which  are  good  for  two  years. 
Prepares  questions  for  County  Board  of  Examiners. 

Teachers  shall  have  certificates.  May  suspend  pupil 
during  current  quarter,  and  such  pupil  has  right  of 
appeal  to  Board  of  Directors. 

Text-Books  are  free  to  indigent  children. 

Text-Book  Commission  consists  of  Governor  and  six 
others.  Select  books  and  supplies.  Advertise  for  bids. 
Contracting  publisher  gives  bond.     May  publish  books. 

§  166.    Oregon. 

Compulsory  Attendance  is  required  of  children  be- 
tween nine  and  fifteen  in  a  public  school.  Excused 
for  similar  attendance  in  private  or  parochial  school ; 
if  physically  incapacitated ;  if  between  nine  and  ten 
and   hves   more   than   one   and   one-half   miles   from 

356 


Ch.  XI]  OREGON  [§  166 

school;  if  being  properly  taught  at  home.  Parents 
or  persons  in  parental  relation  are  prosecuted  for  non- 
compliance with  this  law,  and  the  penalty  is  fine  or 
imprisonment. 

County  Superintendent  is  elected  by  voters  of  each 
county.  Reports  to  State  Superintendent.  Hears  and 
determines  appeals  from  teachers  and  district  officers, 
subject  to  appeal  to  Superintendent  of  Public  Instruc- 
tion. Holds  teachers'  institutes.  Attends  County 
Superintendents'  convention  called  by  Superintendent 
of  Public  Instruction.  District  Attorney  is  legal 
adviser. 

District  School  Board  varying  from  three  to  five 
members  visits  and  inspects  schools.  May  exclude 
refractory  pupils  during  current  term.  Furnish  fuel 
and  supplies.  Upon  vote  of  electors  may  select  sites, 
remove  schoolhouses,  buy  and  sell  property  both  real 
and  personal.  Contract  with  teachers  who  shall  not 
be  related  to  a  member  within  third  degree  by  either 
blood  or  marriage,  except  upon  unanimous  concurrence 
of  Board.  May  dismiss  teachers  for  cause.  May  allow 
school-houses  to  be  used  for  certain  other  purposes. 

Electors  may  be  of  either  sex. 

Evening  Schools  may  be  established  in  districts  of  the 
second  class  (see  School  Districts),  without  restrictions 
as  to  age  or  citizenship. 

School  Age  is  between  six  and  twenty-one,  in  kinder- 
gartens over  four. 

School  Districts  are  divisions  of  counties.  Those 
with  one  thousand  or  more  children  of  school  age  are 
first  class;    between  two  hundred  and  one  thousand 

357 


§  166]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

second  class;    less  than  two  hundred  are  third  class. 
All  are  bodies  corporate. 

School  Term  is  at  least  six  months. 

Secret  Societies  are  unlawful  and  those  who  become 
members  may  be  suspended  or  expelled. 

State  Board  of  Education  consists  of  Governor,  Secre- 
tary of  State,  and  Superintendent  of  Public  Instruc- 
tion. Authorizes  series  of  text-books  recommended 
by  text-book  commission.  Prepares  course  of  study. 
Prescribes  rules  for  schools. 

State  Board  of  Examiners  appointed  by  State  Super- 
intendent consists  of  as  many  teachers  as  he  may  deem 
necessary.     Examine  applicants  and  grade  them. 

Superintendent  of  Public  Instructio7i  is  elected  by  the 
people.  Exercises  general  supervision  of  school  officers 
and  affairs.  Visits  counties.  Attends  county  in- 
stitutes. Keeps  statistics.  Acts  as  secretary  of  State 
Board  of  Education.  Decides  cases  on  appeal.  Re- 
ports to  legislature.     Issues  certificates. 

Teachers  must  hold  certificates  and  be  at  least  eigh- 
teen. Keep  register  and  make  report  pending  which 
last  month's  salary  is  withheld.     Have  retirement  fund. 

Text-Book  Commission  of  five  appointed  by  Gover- 
nor, consider  and  adopt  text-books. 

Text-Books  by  vote  of  district  or  report  of  clerk  may 
be  loaned  to  indigent  children. 

Transportation  upon  vote  of  district  shall  be  of  pupils 
residing  more  than  two  miles  from  school,  or  may  pay 
board  near  by  if  not  more  expensive.  And  may  fur- 
nish other  transportation  of  pupils  within  two  miles  in 
their  discretion. 

358 


Ch.  XI]  PENNSYLVANIA  [§  1G7 

Truancy  is  guarded  against  by  truant  officers  who 
investigate  and  send  notice  to  parent  or  guardian. 
Vaccination  may  be  required  by  district  board. 

§  167.   Pennsylvania. 

Bihle  shall  be  read,  at  least  ten  verses  every  day, 
without  comment. 

Compulsory  Attendance  is  required  between  eight 
and  sixteen  in  a  day  school.  May  be  excused  for 
mental,  physical  or  urgent  reasons.  Employment 
certificates  may  be  issued  to  children  between  fourteen 
and  sixteen.  Parents  or  guardians  may  be  found 
guilty  of  misdemeanor  for  not  complying. 

County  Superintendent  is  elected  every  four  years  by 
School  Directors  of  county.  Visits  schools.  Inspects 
grounds  and  buildings.  Has  one  or  more  assistants  if 
he  has  charge  of  more  than  two  hundred  teachers. 
Holds  institutes. 

School  Age  is  between  six  and  twenty-one,  without 
distinction  of  race  or  color. 

School  Directors  for  first  class  districts  known  as 
Board  of  Education,  are  fifteen  in  number  appointed 
by  the  court  of  common  pleas.  Second  class,  nine 
elected  at  large.  Third  class,  seven  elected  at  large. 
Fourth  class,  five  elected  at  large.  Each  Board  may 
appoint  a  solicitor.  Make  rules  and  regulations. 
Exercise  general  supervision.  Provide  grounds  and 
buildings. 

School  Districts  are  each  city,  incorporated  town, 
borough,  or  township,  and  are  constituted  separate 
school  districts.     Those  of  five  hundred  thousand  or 

359 


§  167]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

more  population  are  termed  of  the  first  class ;  between 
thirty  thousand  and  five  hundred  thousand  are  of  the 
second  class ;  between  five  thousand  and  thirty  thou- 
sand are  of  the  third  class  and  of  less  than  five  thousand 
are  of  the  fourth  class.     All  are  bodies  corporate. 

School  Visitors  are  elected,  seven  from  each  ward, 
in  districts  of  the  first  class.  Visit  public  elementary 
schools.  Suggest  to  directors.  Report  in  writing  to 
Board  of  Education  every  three  months. 

State  Board  of  Education  of  six  members  is  appointed 
by  Governor.  State  Superintendent  is  ex  officio  a 
member  and  president  thereof.  Report  and  recommend 
to  legislature. 

Superintendent  of  Public  Instruction  has  supervision 
of  all  public  schools.  Reports  annually  to  legislature. 
Gives  advice  and  information.  Appoints  two  deputies. 
Prescribes  minimum  course  of  study.  Gives  decisions 
on  school  law. 

Teachers  must  have  certificates  and  be  at  least 
eighteen.  Contracts  in  districts  of  second,  third,  and 
fourth  class,  shall  be  in  writing  and  in  duplicate.  If 
related  to  member  of  Board  must  receive  votes  of 
three-fourths  of  all  members  of  Board.  Minimum 
salary  is  forty  dollars  per  month.  Must  attend  insti- 
tute.    Have  retirement  fund. 

Text-Books  are  supphed  by  school  directors  free  of  cost. 

Transportation  may  be  provided  in  any  district, 
and  shall  be  provided  in  any  district  of  the  fourth 
class  when  a  school  is  closed  and  pupil  resides  one  and 
one-half  or  more  miles  from  the  school  to  which  he  is 
assigned. 

360 


Ch.  XI]  RHODE  ISLAND  [§  168 

Truancy  is  guarded  against  by  attendance  officers 
who  shall  be  appointed  in  districts  of  first,  second,  and 
third  class,  and  may  be  appointed  in  fourth  class. 
May  arrest  truants  without  warrant,  notify  parent  or 
guardian,  and  place  in  school. 

Vaccination  is  a  condition  precedent  to  admission. 

§  168.   Rhode  Island. 

Commissioner  of  Public  Schools  is  elected  by  State 
Board  of  Education. 

Compulsory  Attendance  of  every  child  who  has  com- 
pleted seven  years  of  life  and  has  not  completed  fifteen 
years  of  hfe  unless  he  has  completed  the  eight  years  of 
prescribed  studies,  or  shall  have  completed  fourteen 
years  of  life  and  been  granted  an  employment  certifi- 
cate. Private  schools  or  approved  private  instruction 
may  be  substituted.     May  be  excused  for  cause. 

Districts  are  abolished  except  that  corporate  powers 
and  liabilities  of  any  heretofore  existing  shall  continue 
and  remain  so  far  as  necessary.     (See  Towns.) 

Employment  Certificates  are  issued  to  children  between 
fourteen  and  sixteen. 

Evening  Schools  may  be  established  by  towns. 

Exclusion  shall  not  be  on  account  of  race  or  color, 
nor  for  being  over  fifteen. 

School  Committee  of  three  residents  of  each  town 
who  need  not  be  electors.  They  shall  elect  a  Superin- 
tendent of  Schools,  choose  chairman  and  clerk  either 
of  whom  may  sign  papers,  locate  schoolhouses,  arrange 
for  pupils  to  attend  in  adjoining  towns,  suspend  pupils, 
select  teachers  and  dismiss  them  upon  notice  and  hear- 

361 


§  168]         SYNOPSES   OF   PRINCIPAL  STATUTES    [Cii.  XI 

ing.  Appeal  may  be  had  from  their  decision  to  the 
Commissioner  who  may,  and  if  requested  shall,  lay 
the  facts  before  one  of  the  justices  of  the  supreme 
court  whose  decision  shall  be  final.  Rules  may  prohibit 
appeals  for  trifling  causes.  Parties  may  agree  that 
decision  of  the  Commissioner  shall  be  final. 

School  Term  for  at  least  thirty-six  weeks. 

State  Board  of  Education  consisting  of  Governor, 
Lieutenant  Governor,  as  members  ex  officio,  and  one 
member  from  each  county  (five)  except  Providence 
county  which  shall  have  two  other  members  are  elected 
by  the  legislature.  They  shall  elect  a  Commissioner 
of  Public  Schools  who  shall  be  secretary  of  the  Board. 
The  Governor  is  president.  They  shall  prescribe  all 
rules  and  regulations.  Private  schools  shall  report  to 
them.  Provide  for  the  instruction  of  adult  blind 
residents  at  their  homes.  The  Board  receives  no  com- 
pensation but  expenses  are  paid. 

Teachers  shall  have  certificates  which  may  be  an- 
nulled after  notice  and  hearing.  Shall  keep  registers. 
Institutes  are  held  under  direction  of  Commissioner 
with  annual  appropriation  of  five  hundred  dollars. 
Annual  salary  shall  be  not  less  than  four  hundred 
dollars.  Must  hold  fire  drills  or  rapid  dismissals  at 
least  once  each  month.  Pensioned  after  thirty-five 
years'  service,  of  which  twenty-five  shall  have  been 
within  State,  fifteen  of  which  shall  have  been  im- 
mediately preceding  retirement,  amounting  to  sum 
equal  to  one-half  salary  of  five  years  next  preced- 
ing, but  in  no  case  more  than  five  hundred  dollars 
annually. 

362 


Ch.  XI]  SOUTH  CAROLINA  [§  169 

Text-Books  as  far  as  practicable  shall  be  uniform, 
supplied  by  each  town  and  loaned  to  pupils  free  of 
charge,  no  change  of  books  to  be  made  in  three  years 
unless  by  consent  of  Board  of  Education. 

Toiims  shall  establish  and  maintain  public  schools. 
Two  or  more  towns  aggregating  sixty  or  less  schools 
may  unite  to  employ  joint  Superintendent.  All  Super- 
intendents shall  have  certificates  from  State  Board  of 
Education. 

Transportation  may  be  provided. 

Truancy  is  guarded  against  by  one  or  more  truant 
officers  appointed  by  each  town. 

Vaccination  is  required,  and  no  pupil  may  attend 
without  certificate  of  vaccination  or  non-fitness  therefor. 

§  169.   South  Carolina. 

Compulsory  Attendance  is  required  between  eight 
and  fourteen,  and  between  fourteen  and  sixteen  unless 
regularly  employed,  in  a  public  school,  or  in  some 
private  or  church  school  keeping  record  and  rendering 
reports.  Excused  for  mental  or  physical  incapacity, 
or  where  child  resides  two  and  one-half  miles  or  more 
from  school  and  transportation  is  not  furnished,  or  for 
extreme  poverty,  or  for  good  and  sufficient  reasons. 
Parents  or  guardians  may  be  found  guilty  of  misde- 
meanor for  non-compliance,  and  subject  to  fine  and 
imprisonment  for  non-payment  thereof.  This  law  is 
not  operative  in  any  district  until  the  electors  so  vote. 

County  Board  of  Education  consists  of  County  Super- 
intendent and  two  others  appointed  by  State  Board  of 
Education.     Examines  applicants  for  teachers'  certifi- 

363 


§  169]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

cates  and  issues  them.  Are  advisory  board  to  County 
Superintendent. 

County  Superintendents  are  elected  in  each  county. 
Visits  schools  and  recommends  improvements. 

School  Age  is  between  six  and  twenty-one,  in  kinder- 
gartens from  four  to  six. 

School  Districts  are  divisions  of  counties,  formed  or 
changed  by  County  Board  of  Education.  Are  bodies 
corporate.  City  of  Charleston  consists  of  six  districts 
in  charge  of  Board  of  School  Commissioners. 

School  Term  is  fixed  by  district  trustees  and  must  be 
at  least  three  months  each  year. 

School  Trustees  of  three  in  number  are  appointed  by 
the  County  Board  of  Education  for  each  district.  Have 
local  management  and  control.  Visit  schools.  Em- 
ploy and  discharge  teachers.  Suspend  or  dismiss 
pupils.  Provide  schoolhouses.  Manage  school  prop- 
erty. 

Separate  Schools  are  required  by  the  constitution. 

State  Board  of  Education  consists  of  Governor  as 
chairman,  State  Superintendent  as  secretary  and  seven 
others  appointed  by  the  Governor,  one  from  each  con- 
gressional district.  Regulate  examination  of  teachers, 
adopt  rules  for  their  own  regulation  and  of  the  public 
schools,  prescribe  courses  of  study,  and  uniform  text- 
books, contract  with  publishers  who  shall  give  a  bond. 

Superintendent  of  Education  is  elected  by  the  people. 
Has  general  supervision  of  pubhc  schools  and  funds 
therefor. 

Teachers  must  have  certificates.  Keep  register  and 
report  to  clerk  of  trustees.     Must  not  be  related  to  a 

364 


Ch.  XI]  SOUTH  DAKOTA  [§  170 

trustee  except  on  written  approval  of  County  Board, 
and  written  request  of  majority  of  pupils'  parents. 

Text-Books  are  loaned  free  to  indigent  children  and 
provided  at  cost  to  others.  Are  contracted  for  by 
State  Board  of  Education,  not  to  be  changed  in  five 
years  except  when  authorized  by  legislature. 

Vaccination  is  a  condition  precedent  to  admission 
if  local  law  requires  vaccination. 

§  170.    South  Dakota. 

Compulsory  Attendance  is  required  between  eight 
and  sixteen  in  some  public  or  private  day  school  until 
eighth  grade  is  finished.  Excused  if  competent  in- 
struction is  given  elsewhere,  or  if  mentally  or  physically 
incapacitated,  or  if  in  the  opinion  of  court  or  judge 
enforcement  of  law  would  not  be  humane.  Persons 
in  parental  relation  may  be  fined  for  allowing  tru- 
ancy. 

County  Board  of  Education  advertises  for  bids  and 
select  text-books. 

County  Superintendent  is  elected  by  county  voters 
and  has  supervision  of  public  schools  of  the  county. 
Visits  schools.  Holds  district  institutes.  Advises  with 
school  officials. 

District  School  Board  consisting  of  a  chairman,  clerk, 
and  treasurer  are  elected  by  voters  of  district.  Have 
general  charge,  direction  and  management  of  schools 
and  property.     Employ  teachers. 

School  Districts  are  usually  townships,  and  are 
bodies  corporate.  Cities  and  towns  are  independent 
districts. 

365 


§  170]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

State  Board  of  Regents  of  Education  of  five  members 
appointed  by  Governor,  have  charge  of  educational 
interests  of  State. 

Superintendent  of  Public  Instruction  supervises  county 
schools,  high  schools.  City  and  County  Superintendents. 
Holds  convention  of  County  Superintendents.  Renders 
written  opinions  when  requested  by  a  County  Superin- 
tendent. Examines  applicants  and  issues  certificates. 
May  appoint  a  deputy. 

Teachers  must  have  certificates,  and  contract  in  writ- 
ing and  in  duplicate.  Statute  makes  many  duties  part 
of  contract  whether  expressed  therein  or  not.  Keep 
register  and  make  report. 

Text-Books  are  contracted  for  for  five  years.  Free  to 
pupils  upon  petition  of  a  majority  of  electors  of  a 
district. 

Transportation  of  pupils  fiving  more  than  two  and 
one-half  and  less  than  three  miles  from  school  is  pro- 
vided for  by  allowing  parent  ten  cents  per  day  for  each 
pupil ;  three  to  four  miles,  twenty  cents ;  four  to  five 
miles,  thirty  cents;  more  than  five  miles,  forty  cents 
per  day  for  each  pupil.  Such  allowance  not  to  exceed 
that  for  two  pupils,  and  is  for  actual  attendance. 
Transportation  or  board  is  provided  for  children  in 
unorganized  territory  to  enable  them  to  attend  in  an 
organized  district.  In  consoUdated  districts  may  be 
provided  for  children  fiving  more  than  two  miles  from 
school. 

Truancy  is  guarded  against  in  cities  and  towns  com- 
prising independent  districts,  by  truant  officers  ap- 
pointed by  the  local  Board  of   Education.     In   other 

366 


Ch.  XI]  TENNESSEE  [§  171 

districts   the   County   Superintendent  is  ex  officio    a 
truant  officer. 

§  171.   Tennessee. 

Bible  to  the  extent  of  at  least  ten  verses  must  be 
read  every  day  without  comment.  Pupils  are  excused 
from  being  present  at  such  reading  upon  written  re- 
quest of  parents. 

Boards  of  Education  of  six  members  may  be  appointed 
in  any  municipal  corporation  by  the  mayor  and  alder- 
men, or  the  mayor  and  aldermen  may  establish  and 
maintain  a  system  of  high  graded  schools.  Women 
are  eligible  to  serve  thereon. 

Compulsory  Attendance  is  required  between  eight  and 
fourteen,  and  between  sixteen  and  eighteen  unless 
regularly  employed,  in  some  public,  private  or  parochial 
school  at  least  eighty  consecutive  days  unless  school 
term  is  less,  then  for  full  term,  in  each  year.  In  larger 
cities  longer  attendance  may  be  required.  Excused  for 
extreme  poverty,  or  mental  or  physical  incapacity,  or 
when  child  lives  more  than  two  miles  from  school  and 
transportation  is  not  furnished.  Parent  or  guardian 
may  be  convicted  of  misdemeanor  for  non-compliance. 

County  Board  of  Education  consists  of  five,  one  elected 
by  county  court  from  each  school  district  and  the 
others  if  any,  at  large.  County  Superintendent  fills 
vacancies,  and  acts  as  secretary.  They  select  teachers, 
fix  their  salaries,  erect  and  repair  schoolhouses.  Locate 
schools.  Visit  schools.  Dismiss  teachers  for  cause. 
Buy,  transfer,  sell,  care  for,  manage  and  control  school 
property.    May  exercise  eminent  domain. 

367 


§  171]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Cii.  XI 

County  Superintendent  is  elected  by  county  court  and 
may  be  of  either  sex.  Supervises  public  schools. 
Visits  schools.  Acts  as  secretary  of  County  Board  of 
Education. 

District  Advisory  Board  of  three  in  each  civil  dis- 
trict elected  by  voters  of  district.  Supervise  schools 
and  property.  Recommend  and  report  to  County 
Board.  Suspend  and  dismiss  pupils  subject  to  appeal 
to  County  Board. 

School  Age  is  between  six  and  twenty-one. 

School  Districts  consist  of  five  in  each  county,  if  so 
many  exist. 

Separate  Schools  must  be  maintained. 

State  Board  of  Education  consists  of  nine  members 
appointed  by  Governor,  he  being  president  ex  officio, 
with  State  Superintendent  secretary  and  treasurer  ex 
officio.  Report  to  legislature.  Supervise  normal  col- 
lege and  schools,  keeping  them  separate  for  white  and 
colored  pupils. 

State  Superintendent  is  nominated  by  the  Governor 
and  confirmed  by  the  Senate.  Is  secretary  and  treas- 
urer of  State  Board  of  Education.  Collects  and  dis- 
tributes information  relating  to  public  schools.  Visits 
and  inspects  schools.  Prescribes  mode  of  examining 
and  licensing  teachers.  Issues  certificates  to  teachers. 
Reports  to  Governor. 

Teachers  must  have  certificates  and  be  at  least 
eighteen.  Certificates  will  not  be  issued  to  persons 
addicted  to  the  use  of  intoxicants,  opiates,  or  cigarettes. 
Must  keep  records  and  make  report.  Must  have  con- 
tract in  writing  and  in  dupUcate.     May  suspend  pupils 

368 


Ch.  XI]  TEXAS  [§  172 

subject  to  decision  of  County  Board.  Must  attend 
institute. 

Text- Books  are  free  to  indigent  children. 

Text-Book  Commission  consists  of  Governor,  State 
Superintendent,  and  three  others  appointed  by  Gover- 
nor. Select  and  adopt  a  uniform  series  of  text-books, 
not  to  be  changed  in  five  years.  Sub-commission  of 
five  teachers  or  Superintendents  examine  books  and 
recommend  to  Commission  who  advertise  for  bids. 
Contracting  publisher  shall  give  bond,  not  to  be  ex- 
hausted by  a  single  recovery. 

Transportation  may  be  furnished  in  consolidated 
districts. 

Truancy  is  guarded  against  by  attendance  officers. 
Every  city  maintaining  a  separate  system  having  a 
scholastic  population  of  five  thousand  or  more,  shall, 
by  the  Board  of  Education,  elect  one  or  more  such 
officers.  If  less  than  five  thousand  may  elect.  Also 
may  elect  in  counties.  They  serve  notice  of  truancy 
on  parent  or  guardian,  and  may  arrest  without  a  war- 
rant a  truant  child  and  place  in  school. 

§  172.   Texas. 

Compulsory  Attendance  is  required  between  eight 
and  fourteen  in  a  public,  private  or  parochial  school, 
unless  properly  instructed  at  home,  or  unless  child 
is  mentally  or  physically  incapacitated,  or  lives  more 
than  two  and  one-half  miles  from  nearest  school 
for  same  race,  with  no  free  transportation  provided, 
or  if  more  than  twelve  and  services  are  necessary 
to    support    of    parent    or    guardian.       Parents    or 

369 


§  172]         SYNOPSES   OF   PRINCIPAL  STATUTES    [Ch.  XI 

guardians  may  be  fined  for  non-observance  of  this 
law. 

County  School  Trustees  five  in  number,  elected  by  the 
county  voters,  have  general  management  and  control 
of  the  public  free  schools  in  each  county.  Classify 
schools.     Prescribe  course  of  study. 

County  Superintendent  is  elected  in  all  counties  having 
three  thousand  scholastic  population,  and  in  those  of 
lesser  number  upon  petition  of  voters.  Has  im- 
mediate supervision  of  educational  matters.  Conducts 
County  Institute.  Apportions  funds.  Approves  con- 
tracts and  vouchers. 

School  Age  is  between  seven  and  twenty-one,  but 
others  may  be  admitted  by  the  trustees  in  their  dis- 
cretion.    Kindergartens  between  four  and  seven. 

School  Districts  are  parts  of  counties.  May  be  con- 
solidated to  secure  high  school  advantages.  Cities, 
towns  and  villages  may  be  independent  districts  with 
seven  trustees. 

School  Trustees  three  in  number  are  elected  by  voters 
of  district.  Are  bodies  corporate.  Contract  for  build- 
ings. Manage  and  control  public  schools.  Employ 
and  dismiss  teachers  who  may  appeal  to  County  Super- 
intendent.    Independent  districts  have  seven  trustees. 

Separate  Schools  must  be  maintained. 

State  Board  of  Education  consists  of  Governor  as 
president.  Secretary  of  State  as  secretary,  and  Comp- 
troller. Apportions  school  funds.  Makes  rules  and 
regulations. 

State  Superintendent  of  Public  Instruction  is  elected 
by  the  people.     Administers  school  law.     Superintends 

370 


Ch.  XI]  UTAH  [§  173 

business  relating  to  public  schools.  Hears  and  de- 
termines appeals  subject  to  review  by  State  Board  of 
Education. 

Teachers  must  have  certificate,  be  not  less  than  six- 
teen, and  not  be  related  to  any  member  of  the  School 
Board  by  affinity  within  second  degree,  or  by  consan- 
guinity within  third  degree.  Keep  registers  and  make 
reports. 

Text-Books  are  selected  by  State  Text-Book  Board 
of  eleven  members,  and  adopted  for  six  years.  Free 
books  are  at  option  of  each  district. 

Truancy  is  guarded  against  by  attendance  officers 
who  may  be  elected  by  school  trustees.  They  warn 
parents  or  guardians  of  truants. 

Transportation  must  be  provided  for  children  between 
seven  and  seventeen  living  more  than  three  miles  from 
school. 

§  173.   Utah. 

Boards  of  Education  of  each  county  school  district 
of  the  first  class  shall  consist  of  five  members,  one 
elected  from  each  representative  precinct.  Estimate 
funds  needed.  Such  Boards  in  larger  cities  of  first 
and  second  class  are  from  each  ward. 

Compulsory  Attendance  is  required  between  eight 
and  sixteen  in  public,  district  or  private  school,  at  least 
twenty  weeks  in  each  year,  and  in  cities  at  least  thirty 
weeks.  Excused  for  proper  instruction  at  home;  de- 
ficient mental  or  physical  condition  ;  not  living  within 
two  and  one-half  miles  of  school ;  services  being  neces- 
sary to  support  of  mother  or  invalid  father.     Parent 

371 


§  173]         SYNOPSES   OF   PRINCIPAL  STATUTES    [Ch.  XI 

or  guardian  willfully  failing  to  comply  may  be  convicted 
of  misdemeanor. 

County  Superintendent  is  elected  by  county  voters. 
Has  superintendence  of  all  district  schools  except  in 
cities  of  first  and  second  class.  Supervises  boundaries. 
Visits  schools.  Decides  controversies.  Holds  teachers' 
institutes.     Conducts  teachers'  examinations. 

School  Age  is  between  six  and  eighteen  in  district 
schools. 

School  Districts  are  counties,  each  of  which  constitutes 
a  county  school  district  of  the  first  class,  but  in  special 
instances  of  larger  population  more  than  one  such  dis- 
trict may  exist  in  the  same  county.  Each  district  is 
divided  into  five  representative  precincts.  Such-  dis- 
tricts use  books  adopted  by  the  State  Text-Book  Com- 
mission.    All  districts  are  public  corporations. 

School  Term  is  fixed  by  district  trustees. 

School  Trustees,  three  in  number  are  elected  by  voters 
of  district.  Have  general  charge,  direction,  and 
management  of  schools,  and  care,  custody,  and  control 
of  property.  Employ  and  dismiss  teachers.  May 
suspend  pupils. 

State  Board  of  Education  consists  of  State  Superin- 
tendent of  Public  Instruction,  president  of  University, 
president  of  Agricultural  College,  and  six  other  persons 
appointed  by  Governor  without  reference  to  residence, 
occupation,  party  affiliation,  religion  or  sex.  Have 
general  control  and  supervision  of  public  school  system. 
Promote  libraries  and  gymnasiums.  Conduct  examina- 
tions for  teachers  in  county  school  districts  of  the  first 
class. 

372 


Ch.  XI]  VERMONT  [§  174 

State  Superintendent  of  Public  Instruction  is  elected 
by  the  people,  and  is  charged  with  administration  of 
the  public  school  system.  Visits  schools.  Advises 
with  officers.  Gives  written  answers  to  questions  on 
school  law.     Reports  to  legislature. 

State  Text-Book  Commission  consists  of  State  Superin- 
tendent of  Public  Instruction,  president  of  University, 
president  of  Agricultural  College,  principal  of  Normal 
School,  and  five  resident  citizens  appointed  by 
Governor,  three  of  whom  shall  be  Superintendents  of 
Schools.  Adopt  text-books  for  all  district  and  high 
schools  except  in  cities  of  first  and  second  class.  Adopt 
books  not  to  be  changed  in  five  years. 

Teachers  must  have  certificates.  Must  contract  in 
writing.  Keep  register  and  report.  Attend  institutes. 
May  suspend  pupils  for  not  more  than  five  days.  Have 
retirement  fund. 

Text-Books  are  free  of  cost,  and  by  constitu- 
tional provision  may  not  be  prescribed  by  either 
legislature  or  State  Board  of  Education.  In  cities 
of  first  and  second  class  are  selected  by  Board  of  Edu- 
cation for  five  years.  Contracting  publisher  shall  give 
bond. 

§  174.   Vermont. 

Commissioner  of  Education  is  appointed  for  indefinite 
term,  and  is  secretary  of  the  State  Board  of  Education 
by  whom  he  is  appointed.  He  shall  make  full  reports 
to  the  Board  and  make  recommendations.  He  shall 
appoint  State  supervisors.  His  decision  on  residence  of 
a  pupil  is  final. 

373 


§  174]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

Compulsory  Attendance  is  required  of  children  between 
eight  and  sixteen  unless  mentally  or  physically  unable 
to  attend,  or  are  otherwise  furnished  with  the  same 
education,  or  legally  excused  in  writing  by  the  Superin- 
tendent. May  be  excused  at  fifteen.  Indigent  chil- 
dren are  supplied  with  the  necessary  clothing.  School 
Board  may  employ  a  teacher  to  instruct  disabled  chil- 
dren at  home. 

Discipline  may  include  corporal  punishment. 

Districts  as  divisions  of  towns  are  abolished,  and 
a  town  constitutes  a  district,  except  such  districts  as 
are  incorporated  by  special  acts.  Towns  may  borrow 
money. 

Electors  on  matters  pertaining  to  schools  and  school 
officers  are  of  either  sex,  and  either  sex  may  hold  offices 
relating  to  school  affairs.  But  women  are  not  subject 
to  poll  taxes. 

Evening  Schools  may  be  maintained  by  towns  for 
persons  above  compulsory  school  age. 

School  Age  is  between  six  and  eighteen,  compulsory 
between  eight  and  sixteen,  but  older  pupils  may  attend. 
''Between  "  means  from  day  of  beginning  of  age  first 
specified  to  day  preceding  beginning  of  age  last  specified. 
Kindergartens  may  be  established  by  towns,  open  to 
children  under  six. 

School  Directors  in  towns  of  more  than  four  thousand 
inhabitants  are  elected  on  a  separate  ballot  in  a 
separate  ballot  box.  A  Board  consists  of  three  citi- 
zens of  the  town.  They  have  care  of  the  school 
property  of  the  town,  and  management  of  its  schools, 
make  regulations,  determine  number  and  location  of 

374 


Ch.  XI]  VERMONT  [§  174 

schools,  employ  teachers  and  fix  their  compensation, 
examine  claims  and  draw  orders  therefor  stating  the 
purpose  for  which  they  are  drawn.  They  are  liable 
to  the  town  for  illegal  payments.  They  appoint  a 
clerk. 

School  Property  is  in  charge  of  the  town. 

School  Year  shall  be  for  at  least  thirty-four  weeks. 

Secret  Societies  are  regulated  and  pupils  may  not  join 
or  solicit  other  pupils  to  join  any  secret  fraternity,  club 
or  society,  except  such  as  are  sanctioned  by  the  Com- 
missioner of  Education  and  Superintendent ;  but  tem- 
perance, religious  and  moral  societies  are  excepted. 
Violations  are  punished  by  suspension,  dismissal  or 
deprivation  of  graduation  and  school  honors. 

State  Board  of  Education  consisting  of  five  persons 
appointed  by  Governor,  receive  four  dollars  per  day 
for  actual  time  spent,  and  necessary  expenses.  Their 
main  duties  are :  to  employ  a  trained  and  skillful  execu- 
tive officer  called  the  Commissioner  of  Education,  and 
fix  his  salary.  Through  the  Commissioner  they  pre- 
pare uniform  courses  of  study,  see  that  laws  are  en- 
forced, supervise  expenditures,  inform  the  people  as 
to  educational  conditions,  make  rules  and  regulations 
to  guide  subordinates,  report  to  legislature.  They  shall 
appoint  a  sufficient  number  of  Superintendents  and  des- 
ignate the  schools  they  are  to  supervise.  But  a  town 
or  incorporated  district  having  twenty-five  or  more 
schools  may  appoint  own  Superintendent  at  a  salary 
of  not  less  than  fifteen  hundred  dollars. 

Rural  Schools  are  such  as  have  not  more  than  two 
teachers. 

375 


§  175]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

Teachers  shall  keep  registers  to  be  delivered  at  end 
of  each  term,  and  no  order  is  to  be  drawn  for  the  last 
month's  salary  of  the  term  until  the  register  is  ap- 
proved. Certificate  is  required  and  contract  is  void 
unless  certificate  is  obtained  before  opening  school. 
No  compensation  shall  be  less  than  eight  dollars  per 
week.  Contracts  shall  be  in  writing  and  in  triplicate. 
Towns  may  vote  to  pension  teachers  who  have  taught 
thirty  years,  limited  to  one-half  the  salary  formerly 
received.     State  also  provides  a  retirement  fund. 

Text-Books,  appliances  and  supplies  are  provided 
by  the  town,  and  with  exceptions,  are  selected  by  the 
Board  of  School  Directors,  subject  to  approval  of 
the  Superintendent. 

Transportation  may  be  furnished  to  pupils,  or  the 
pupils'  board  paid  nearby.  Appeal  may  be  had  to 
the  Commissioner  whose  decision  is  final. 

Truancy  is  guarded  against  by  the  truant  officer  of 
the  town.  He  may  stop  a  child  between  eight  and 
sixteen  and  take  him  to  school.  Complaints  are  made 
to  the  grand  juror  of  the  town. 

Vocational  Courses  are  supplied  in  high  schools. 

§  175.   Virginia. 

Compulsory  Attendance  is  required  between  eight  and 
twelve  for  at  least  twelve  weeks  in  each  school  year. 
Excused  for  weakness  of  body  or  mind,  or  if  child  can 
read  and  write,  or  is  attending  a  private  school,  or  lives 
more  than  two  miles  from  school,  or  more  than  one 
mile  from  a  free  school  wagon  route.  This  act  shall 
not  prevail  in  any  district  until  adopted  by  the  voters. 

376 


Ch.  XI]  VIRGINIA  [§  175 

County  School  Board  consists  of  the  Division  Superin- 
tendent together  with  the  school  trustees  of  the  county. 
Are  body  corporate.  Estimate  expenses.  Apportion 
county  fund. 

Disirict  Board  of  School  Trustees  are  three  in  number, 
appointed  by  school  trustee  electoral  board.  Are  body 
corporate.  Explain,  enforce  and  observe  school  laws. 
Employ  teachers  and  dismiss  them.  Suspend  and  expel 
pupils.  Visit  schools.  Divide  school  districts  into 
sub-districts.  Must  take  oath.^  Make  rules  for 
schools,  including  going  to  and  coming  from  school. 

Division  Superintendents  are  appointed  by  State 
Board  of  Education.  Powers  and  duties  are  fixed  by 
the  State  Board  of  Education. 

School  Age  is  between  seven  and  twenty,  but  children 
of  six  may  be  admitted  if  sufficiently  mature,  and  others 
between  twenty  and  twenty-five  may  be  admitted  on 
prepayment  of  tuition. 

School  Districts  are  each  "  magisterial  "  district  unless 
State  Board  provides  otherwise.  Towns  of  more  than 
five  hundred  inhabitants  may,  if  council  so  elects, 
constitute  a  single  school  district. 

Separate  Schools  must  be  maintained. 

State  Board  of  Education  is  corporation.  Consists 
of  Governor,  Attorney  General,  Superintendent  of 
Public  Instruction,  and  other  experienced  educators. 
They  divide  the  State  into  school  divisions.  Provide 
for  examinations  of  teachers.  Select  text-books.  De- 
cide appeals  from  decisions  of  State  Superintendent. 

^Failure  to  do  so  creates  a  vacancy;  Childrey  v.  Rady,  77 
Va.  518. 

377 


§  176]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

Sub-District  Directors  explain  and  enforce  laws. 
Examine  claims.  Contract  with  teachers  for  supple- 
mental salaries.  Determine  supplementary  school 
session. 

Superintendent  of  Public  Instruction  is  elected  by 
people.  Is  ex  officio  president  of  State  Board  of  Edu- 
cation, by  whom  his  duties  shall  be  described. 

Teachers  must  hold  certificates.  Keep  register  and 
deliver  it  to  clerk  of  School  Board  at  close  of  term. 
Contract  in  writing.     May  suspend  pupils. 

Text-Books  are  contracted  for  by  the  State  Board  of 
Education  not  to  exceed  a  term  of  seven  years.  Con- 
tracting publisher  files  bond.     Free  to  indigent  children. 

Vaccination  is  required  of  teachers  and  pupils  who 
within  ten  days  after  entering  a  public  school  shall 
furnish  a  physician's  certificate  either  of  successful 
vaccination  or  that  such  person  is  an  unfit  subject.  In 
case  of  epidemic  immediate  vaccination  may  be  ordered. 

§  176.   Washington. 

Compulsory  Attendance,  in  a  public  or  private  school, 
is  required  between  eight  and  fifteen  and  between  fifteen 
and  sixteen  unless  regularly  and  lawfully  employed. 
Excused  for  physical  or  mental  incapacity,  or  for  having 
acquired  proficiency  in  eight  grades,  or  for  some  other 
reason.  Where  the  United  States,  or  State  of  Washing- 
ton shall  erect  a  school  wherein  the  expense  of  tuition, 
lodging,  food  and  clothing  is  borne  by  the  United 
States,  or  State  of  Washington,  compulsory  attendance 
therein  is  required  between  five  and  eighteen  for  nine 
months  each  year,  or  during  the  annual  term  unless  ex- 

378 


Ch.  XI]  WASHINGTON  [§  176 

cused  as  above  noted,  or  transportation  is  not  furnished 
if  residing  more  than  ten  miles  from  school. 

County  Boards  of  Education  appointed  by  County 
Superintendent,  consist  of  five  members  including 
County  Superintendent  who  shall  be  ex  officio  chairman. 
All  shall  hold  teachers'  certificates.  Grade  manu- 
scripts. Adopt  text-books  for  five  years,  in  districts 
of  second  division,  which  are  those  not  maintaining  a 
four  years'  high  school.     Adopt  rules  for  schools. 

County  Superintendent  is  elected  by  voters  of  county. 
Supervises  and  visits  schools  of  county.  Corrects  boun- 
daries. Apportions  school  fund.  Examines  teachers. 
Conducts  institute. 

Electors  may  be  of  either  sex. 

School  Age  is  between  six  and  twenty-one.  In 
kindergartens  between  four  and  six. 

School  Districts  are  each  county.  Are  bodies  cor- 
porate. 

School  Directors  elected  by  voters  of  district  consist 
of  five  members  in  districts  of  the  first  class,  and  three 
in  those  of  second  and  third  class.  Employ  teachers 
and  fix  their  salaries  on  contracts  that  are  printed  or 
written  and  in  duphcate.  Enforce  rules  and  course  of 
study.  Rent,  repair,  furnish  and  insure  schoolhouses 
and  employ  janitors,  laborers,  and  mechanics.  Sus- 
pend and  expel  pupils.  Provide  free  text-books  and 
supplies  in  their  discretion.  Provide  and  pay  for 
transportation  of  pupils  living  more  than  two  miles 
from  school  in  their  discretion.  Authorize  schoolrooms 
to  be  used  for  other  educational,  religious,  political, 
and  scientific  purposes. 

379 


§  176]         SYNOPSES  OF  PRINCIPAL   STATUTES    [Ch.  XI 

School  Term  is  at  least  six  months. 

State  Board  of  Education  consists  of  Superintendent 
of  Public  Instruction,  president  of  the  University, 
president  of  State  College,  principal  of  a  normal  school, 
and  three  holders  of  life  diplomas.  Care  for  higher 
educational  requirements,  prepare  courses  of  study 
for  secondary  schools,  prescribe  rules  for  common 
schools,  prepare  questions  for  teachers'  examinations, 
and  for  those  completing  grammar  school  course. 

Superintendent  of  Public  Instruction  is  elected  by  the 
people.  Has  general  supervision  of  schools.  Reports 
to  Governor.  Is  ex  officio  president  of  State  Board  of 
Education.  Holds  annual  conventions  of  County 
Superintendents.  Issues  certificates.  Decides  appeals 
from  County  Superintendents. 

Teachers  must  be  at  least  eighteen  and  have  certifi- 
cates. Report  to  County  Superintendent.  Keep 
register.  May  suspend  pupils.  Must  attend  insti- 
tutes. 

Text-Books  (see  County  Boards  of  Education;  Text- 
Book  Commission). 

Text-Book  Commission  of  each  school  district  of  first 
division,  which  are  those  maintaining  a  four  years'  high 
school,  select  text-books  for  three  years. 

Truancy  is  guarded  against  by  attendance  officers 
appointed  by  Board  of  Directors  in  city  districts.  In 
all  other  districts  the  County  Superintendent  acts  as 
attendance  officer,  and  may  appoint  assistants.  May 
take  truant  child  into  custody  and  to  parent  or  guardian 
or  to  school. 

Vaccination  may  be  compulsory  in  city  schools. 

380 


Ch.  XI]  WEST  VIRGINIA  [§  177 

§  177.   West  Virginia. 

Boards  of  Education  consisting  of  a  president  and  two 
School  Commissioners  are  elected  for  each  district  by 
the  voters  of  the  district.  In  certain  larger  districts 
the  Board  consists  of  five.  Must  take  oath.  Are  body 
corporate.     Have  general  control  of  schools. 

Compulsory  Attendance  is  required  between  eight  and 
fifteen  for  twenty-four  weeks,  in  a  public  school  yearly. 
Excused  for  attendance  elsewhere,  or  if  no  school 
wdthin  two  miles  of  child's  home.  Employment  cer- 
tificates may  be  issued  between  fourteen  and  sixteen. 

County  Superintendent  is  elected  by  the  voters  in 
each  county.  Visits  schools.  Examines  buildings. 
Conducts  examinations  of  teachers. 

School  Age  is  between  six  and  twenty-one.  Also 
any  other  person  may  be  admitted  by  permission  of 
trustees  or  Board  upon  payment  of  tuition. 

School  Districts  are  divisions  of  a  county,  three  to 
ten  in  each.  They  are  each  "magisterial"  district,  and 
are  divided  into  sub-districts. 

School  Term  is  at  least  six  months. 

School  Trustees,  three  in  number,  are  appointed  for 
each  sub-district  by  the  Board  of  Education  in  each 
district.  Employ  on  written  contract,  teachers  who  do 
not  hold  certain  relationship  to  any  director.  Visit  and 
inspect  schools.  May  allow  schoolhouses  to  be  used  for 
certain  other  purposes. 

Separate  Schools  shall  be  maintained. 

State  Board  of  Education  consists  of  State  Superin- 
tendent, and  five  others  appointed  by  him.  No  two 
from  the  same  congressional  district,  and  not  more  than 

381 


§  178]         SYNOPSES   OF   PRINCIPAL   STATUTES    [Ch.  XI 

three  from  the  same  pohtical  party.  Prescribe  courses 
of  study  and  perform  other  duties  prescribed  by  law. 

State  School-Book  Commission  consists  of  State  Super- 
intendent and  eight  others  appointed  by  Governor. 
Receive  bids  and  make  contracts  for  text-books,  not 
to  be  changed  in  five  years.  Contracting  pubhsher 
shall  give  bond. 

State  Superintendent  of  Free  Schools  elected  by  the 
people  has  general  supervision  of  schools,  County  and 
City  Superintendents.     Gives  decisions  on  school  law. 

Teachers  must  be  at  least  eighteen  and  hold  certifi- 
cates. May  suspend  pupils.  Keep  register  and  report. 
Attend  institute. 

Text-Books  may  be  free,  in  discretion  of  the  Board  of 
Education  of  any  district. 

Transportation  may  be  provided. 

Truancy  is  guarded  against  by  truant  officers  who  give 
notice  to  parent  or  guardian,  and  make  complaint 
before  justice  of  the  peace  for  non-observance.  Parent 
or  guardian  may  be  convicted  of  misdemeanor. 

§  178.   Wisconsin. 

Boards  of  Education  for  larger  cities  consist  of  seven 
members  known  as  Commissioners.  Establish  high, 
district,  primary,  night  and  kindergarten  schools  and 
have  general  supervision  of  them. 

Compulsory  Attendance  is  required  between  seven 
and  fourteen,  and  between  fourteen  and  sixteen  unless 
regularly  employed,  in  some  public,  parochial,  or  private 
school.  Excused  for  mental  or  physical  infirmity,  or 
if  living  more  than  two  miles  from  school,  if  transporta- 

382 


Ch.  XI]  WISCONSIN  [§  178 

tion  is  not  provided,  or  for  proper  and  equivalent  in- 
struction elsewhere.  Parents  or  guardians  not  com- 
plying may  be  fined  or  imprisoned. 

County  Boards  of  Education  consist  of  five  members, 
but  may  consist  of  three,  elected  where  majority  of 
districts  vote  for  free  text-books.  All  must  have  had 
experience  as  teachers.  Select  and  adopt  a  uniform 
series  of  text-books  not  to  be  changed  in  five  years. 
Contracting  publisher  shall  file  copies  and  give 
bond. 

County  Superintendent  may  be  of  either  sex. 
Examines  and  licenses  teachers.  Visits  districts.  Con- 
ducts institute.     Reports  to  State  Superintendent. 

District  Board  are  director,  treasurer  and  clerk  elected 
by  voters  of  district.  Have  care  of  schoolhouses  and 
other  property.  May  authorize  use  of  schoolhouses 
for  public  meetings,  and  entertainments.  Suspend 
and  expel  pupils.  Make  rules.  Adopt  text-books  not 
to  be  changed  in  three  years.     Visit  schools. 

Electors  may  be  of  either  sex. 

School  Age  is  between  four  and  twenty,  but  District 
Board  may  admit  free  between  twenty  and  thirty. 

School  Districts  are  made  by  Town  Boards,  and  unless 
abolished  is  township  system.     Are  bodies  corporate. 

State  Superintendent  of  Public  Instruction  elected  by 
the  people  has  general  supervision  of  the  common 
schools.  Reports  to  Governor.  Supervises  teachers' 
institutes.  Performs  all  other  duties  imposed  by 
law.     Decides  appeals. 

Teachers  must  have  certificates.  Keep  register  and 
report.     Have  insurance  and  retirement  fund. 

383 


§  179]         SYNOPSES   OF   PRINCIPAL  STATUTES    [Cii.  XI 

Text-Books  may  be  free  in  any  district  upon  vote  of 
district,  and  in  any  county  upon  vote  of  majority  of 
districts.     (See  County  Boards  of  Education.) 

Transportation  is  provided  in  consolidated  districts 
for  pupils  living  more  than  two  miles  from  school.  May 
be  provided  in  other  districts. 

Truancy  is  guarded  against  by  truant  officers  ap- 
pointed in  larger  cities  by  local  Board  of  Education.  In 
towns  and  villages  sheriffs,  undersheriffs,  and  deputies 
are  truant  officers. 

§  179.   Wyoming. 

Compulsory  Attendance  is  required  between  seven 
and  fourteen  in  a  public,  private  or  parochial  school. 
Exceptions  may  be  made  of  invalids,  pupils  to  whom 
the  enforcement  of  the  act  might  prove  a  hardship, 
pupils  who  for  legal  reasons  have  been  excluded  and  no 
provision  made  for  schooling. 

County  Superintendent  reports  to  State  Superintend- 
ent. Acts  with  County  Commissioners  in  dividing 
county  into  school  districts.  Visits  schools.  Recom- 
mends dismissal  of  incompetent  teachers  to  school  dis- 
trict trustees.     Holds  institutes. 

Electors  may  be  of  either  sex. 

School  Age  is  between  six  and  twenty-one.  In  kinder- 
gartens between  four  and  six. 

School  Districts  are  parts  of  a  county  and  are  bodies 
corporate. 

School  Trustees,  three  in  number,  are  elected  by  voters 
of  district.  In  districts  of  one  thousand  or  more  popu- 
lation the  number  may  be  increased  to  six.     Make  all 

384 


Ch.  XI]  WYOMING  [§  179 

contracts  necessary  to  carry  out  vote  of  district.  Em- 
ploy teachers.     May  remove  scholars. 

Separate  Schools  may  be  provided  when  there  are 
fifteen  or  more  colored  children  in  each  district. 

State  Board  of  Examiners  of  three  appointed  by 
State  Superintendent  prepare  examination  questions  to 
be  sent  to  County  Superintendents.  Examine  papers 
and  make  rules  regarding  granting  of  certificates. 

Superintendent  of  Public  Instruction  has  general  su- 
pervision of  district  schools.  Prepares  courses  of  study. 
Reports  to  Governor  and  to  legislature.  Conducts 
teachers'  institute.    Makes  rules  and  regulations. 

Teachers  cannot  receive  compensation  unless  holding 
certificates.     Keep  register  and  make  report. 

Text-Books  may  be  contracted  for  by  School  Directors, 
such  contract  not  to  be  for  more  than  five  years.  Con- 
tracting publisher  must  file  bond.  Are  loaned  to  pupils 
free  of  charge.     Pupils  may  purchase  at  cost. 

Truancy  is  guarded  against  by  sheriffs,  deputy 
sheriffs,  and  truant  officers  if  there  be  any.  Give  notice 
to  parent  or  guardian  and  if  notice  is  not  complied 
with  make  complaint  to  justice  of  the  peace  who  may 
convict  of  misdemeanor. 


385 


INDEX 

[References  are  to  sections.] 
A 

ACTIONS.    See  also  School  District  ;  Funds. 

maintainable  by  school  district,  15,  26. 

employment  of  counsel  to  defend,  against  district,  15. 

authority  to  bring,  for  injuries  to  property,  21. 

prosecuting  and  defending,  out  of  school  funds,  26, 

must  be  brought  in  corporate  name,  26. 

where  civil  and  school  townships  are  distinct,  26. 

statute  of  limitations  as  a  defense,  26. 

no  right  to  appear  as  individuals  in,  against  district,  26. 

for  certain  torts,  maintainable  only  by  statute,  27. 

for  trespass  to  land,  27. 

averment  of  bad  faith  necessary  in  some,  45. 

by  teacher  for  salary,  license  to  be  shown,  63. 
ADMISSION, 

may  be  refused  to  child  of  insufficient  education,  78. 

of  pupil  who  passes  all  studies  but  one,  84. 
AGENT.    See  also  Board  of  Education. 

financial,  may  compromise  claim,  43. 
ALIENS, 

not  entitled  to  hold  elective  office,  48. 
APPARATUS, 

forbidding  use  of,  35. 

meaning  of  term,  36. 
APPEALS, 

State  Superintendent  empowered  to  hear,  41. 

power  to  hear  may  not  be  delegated,  41. 

legal  effect  of  judgment  of  State  tribunal  to  hear,  41. 
APPENDAGE, 

meaning  of  term,  36. 

what  may  be  classed  as  an,  36. 

387 


INDEX 

[References  are  to  sections.] 

ARCHITECT, 

decision  of,  as  final,  30. 
ARREST.    See  Attendance  Officers  ;  Tax. 
ATTENDANCE  OFFICERS.    See  also  Truancy. 

wrongful  arrest  by,  board  not  liable,  96. 

are  public  officers,  96. 

are  bound  to  take  oath,  96. 
ATTORNEY'S  FEES.     See  also  Counsel. 

school  district  not  to  be  allowed,  for  defending  groundless  suit,  32. 

B 

BANKRUPTCY, 
of  building  contractor,  school  board  may  finish  building  aban- 
doned by,  30. 
BIBLE, 

reading  of,  68. 
BIDDER, 

contract  may  sometimes  be  awarded  to  one  not  lowest,  55. 

bond  from,  when  required  is  necessary,  55. 

only  one,  cannot  claim  to  be  lowest,  55. 

rights  of  lowest,  will  be  protected  against  fraud,  55. 

what  is  meant  by  "  lowest  responsible,"  55. 

responsibility  of,  to  be  determined  by  body  who  accepts  bids,  55. 

responsibifity  of,  must  be  subject  of  hearing  before  rejection,  55. 
BIDS.     See  also  Text-books;   Bidder. 

unless  required  by  statute,  need  not  advertise  for,  55. 
BOARD  OF  EDUCATION, 

may  not  enact  rules  inconsistent  with  statute  or  city  charter,  43. 

may  appoint  agent  to  secure  land,  43. 

agent's  appointment  by,  need  not  be  under  seal,  43. 

de  facto,  may  issue  valid  bonds,  48. 

may  ratify  some  acts  by  de  facto  officers,  48. 
BONDS.    See  also  Contractors'  Bonds;    Publishers'  Bonds; 
Bidder;  Board  of  Education. 

power  to  issue,  for  building  purposes,  21,  116. 

power  to  issue,  as  implied  from  power  to  borrow,  116. 

failure  to  file,  or  defective,  may  make  de  facto  officer,  48. 

board  of  education  de  facto  may  issue  valid,  48. 

validity  of,  116. 

vote  to  issue,  116. 

purchaser  of,  charged  with  notice,  116. 

issued  in  excess,  how  far  void,  116. 

388 


INDEX 

[References  are  to  sections.] 

BOOKS.    See  Text-books. 
BORROWING  MONEY, 

not  authorized  by  general  authority,  108. 

vote  on,  at  illegal  meeting  creates  no  liability,  108. 

when,  it  must  be  turned  over  to  treasurer,  113. 
BOUNDARIES  OF  DISTRICTS, 

legislative  power  to  change,  19. 

must  be  on  geographical  lines,  19. 

may  not  be  on  personal  limitation,  19. 

continuous  lines  of,  not  necessary,  19. 

must  set  off  both  poll  and  estate,  19. 

petition  to  change,  18,  19. 

reestablishment  of,  is  not  redistricting,  19. 

contract  not  to  change,  may  not  be  made,  19. 

change  of,  not  authorized  by  authority  to  consolidate  districts 
temporarily,  20. 
BROKER, 

commission  of,  in  purchase  of  site,  28. 
BUILDING  COMMITTEE, 

may  be  appointed  to  erect,  purchase  or  repair,  28. 

are  pubHc  officers,  28. 

can  act  by  majority,  28. 
BURNING, 

of  schoolhouse  as  affecting  compensation  of  teacher,  65. 

C 

CASTE, 

constitutional  provisions  regarding,  3. 
CERTIFICATES.    See  Teacher;  Diploma. 
CERTIORARI, 

to  set  aside  organization  of  district,  17. 
CHARITABLE  INSTITUTIONS, 

right  of  children  in,  to  attend  school,  73. 
CHARTER, 

of  city  may  prevail  over  a  general  statute,  43. 

special,  for  school  board  does  not  constitute  de  facto  board  under 
another  act,  43. 

rules  must  not  be  inconsistent  with,  43. 
CHILD.    See  also  Compulsory  Attendance. 

could  not  demand  education  from  parent,  7,  78. 

separate  estate  of,  not  to  be  used  for  education,  7. 

must  be  educated  out  of  parent's  estate,  7. 

389 


INDEX 

[References  are  to  sections.] 

CHILD  —  Continued. 

person  in  loco  parentis  may  be  bound  to  educate,  7. 

at  common  law  was  at  mercy  of  parent,  10,  78. 

at  common  law  had  no  remedy,  10. 

right  to  attend  school  is  not  inherent  in,  12. 

employed  in  labor,  statutes  may  specially  provide  for,  13. 
CITIZENSHIP, 

child  cannot  demand  admission  on  status  of  citizenship,  72. 
CLAIM, 

equitable,  may  be  voted  to  be  paid  at  district  meeting,  26. 

vote  not  to  pay,  makes  demand  unnecessary,  26. 

of  materialmen  paid  by  district  may  be  set  off  against  contrac- 
tor, 32. 

may  be  compromised  by  financial  agent,  43. 

vote  of  district  to  pay  disputed,  may  ratify  contract,  58. 
CLERK.    See  also  Records. 

of  district  refusing  to  act,  25. 

while  in  office  has  right  to  amend  records,  25. 

has  no  right  to  amend  when  out  of  office,  25. 
COLOR, 

constitutional  pro\dsions  regarding,  3. 
COLORED  PUPILS.    See  also  Negroes;   Separate  Schools. 

who  are,  82. 

who  determmes  who  are,  82. 

mandamus  to  compel  establishing  of  schools  for,  82. 

order  to  admit,  to  white  schools  may  be  disregarded,  82. 
COLOR  OF  RIGHT, 

what  constitutes,  48. 
COMMISSIONER.    See  State  Superintendent. 
COMMON  SCHOOLS.    See  Public  Schools. 
COMPENSATION.    See  also  Teacher. 

of  unlicensed  teacher,  63. 

of  unlicensed  teacher,  judgment  for,  63. 

of  Ucensed  teacher,  65. 

on  quantum  meruit,  65. 

no  deduction  to  be  made  from,  for  closing  school,  65. 

not  affected  by  assigning  scholars  as  assistant  teachers,  65. 

not  affected  by  wrongful  exclusion  of  pupil,  65. 
COMPOSITIONS, 

requiring  pupils  to  participate  in,  89. 

selecting  topics  for,  89. 

punishment  for  not  preparing,  89. 

390 


INDEX 

[References  are  to  sections.] 

COMPOSITIONS  —  Continued. 

teaching  by  means  of,  89. 
COMPULSORY  ATTENDANCE, 

laws  are  constitutional,  13. 

home  tuition  may  be  substitute  for,  13. 

home  tuition  may  not  be  substitute  for,  14. 

laws,  object  of,  13. 

private  day  school  may  be  substitute  for,  13,  14. 

statutes,  provisions  of,  13. 

statutes,  are  penal,  14. 

laws,  where  and  how  offender  against  must  be  tried,  14. 

laws,  give  child  right  to  education,  72. 
CONNECTICUT, 

status  of  school  districts  in,  15. 
CONSOLIDATION, 

of  schools,  temporary,  under  statute,  20. 

of  school  committees  with  districts,  20. 

of  district,  old  name  given  to  new  creates  new  district,  20. 

of  district,  object  of,  131. 
CONSTITUTION, 

of  Massachusetts  requires  encouragement  of  education,  3. 

of  Massachusetts,  eighteenth  article  of  amendments  to,  5. 

of  United  States  does  not  pro\dde  for  education,  3. 
CONSTITUTIONAL, 

compulsory  attendance  laws  are,  13. 

minimum  wage  laws  are,  64. 
CONSTITUTIONAL  PROVISIONS, 

for  maintenance  of  pubhc  schools,  3. 

no,  in  New  York  creating  right  to  education,  3. 
CONTAGIOUS  DISEASE, 

as  affecting  teacher's  contract,  64. 
CONTRACT.     See  also  Contracts. 

not  to  be  repudiated  because  not  recorded,  52. 

does  not  arise  where  vote  selecting  superintendent  is  reconsidered 
before  being  communicated,  53. 

with  one  to  keep  order  at  door  does  not  need  formal  vote  by 
directors,  53. 

ability  of  teacher  required  under,  63. 

teacher's,  of  employment,  64. 

executory,  with  teacher  broken,  district  liable,  64. 
CONTRACTS.    See  also  Publishers'  Contracts  ;  Bids  ;  Bidder. 

making  of,  54. 

391 


INDEX 

[References  are  to  sectiona.] 

CONTRACTS  —  Continued. 

must  not  inure  to  personal  benefit  of  public  officers,  54. 

in  making,  a  majority  of  disinterested  directors  must  act,  54. 

directors  in  making,  must  act  without  financial  inducement,  54. 

must  be  signed  by  directors  in  representative  capacity,  54. 

signature  descriptio  personce  makes  a  personal  obligation,  54. 

if  body  of  instrument  shows  signers  are  directors,  descriptio  per- 
sonoe  rule  does  not  obtain,  54. 

in  making,  for  corporation  personal  seals  are  of  no  effect,  54. 

in  excess  of  debt  limit,  54. 

statutory  provisions  must  be  followed  in  making,  54. 

in  making,  directors  must  act  as  board,  54. 

may  be  valid  although  performance  begins  after  signer's  term  of 
office,  54. 

when,  may  be  made  by  two,  54. 

must  specify  no  other  place  than  school  treasury  as  place  of  pay- 
ment, 54. 

cannot  provide  for  payment  of  attorney's  fees,  54. 

statutory  duty  to  make,  cannot  be  delegated,  54. 

approval  of,  resting  in  discretion,  54. 

illegal,  create  personal  UabiUty,  54. 

if  time  and  place  of  meeting  is  fixed  by  statute,  made  at  other 
time  and  place  is  not  vaUd,  54. 

no  action  maintainable  against  party  breaking  illegal,  54. 

made  at  meeting  of  which  notice  was  not  given  to  some  directors 
is  not  valid,  54. 

by  majority  is  valid  if  all  directors  had  notice,  54. 

assent  of  absent  member  to,  54. 

need  not  be  entered  on  records,  54. 

signed  by  members  separately  without  consultation,  54. 

induced  by  false  statements,  54. 

need  not  be  in  writing  unless  statute  requires  it,  54. 

may  be  reduced  to  writing  after  adjournment,  54. 

with  teachers  to  be  in  writing,  part  performance  may  be  ratifi- 
cation, 54. 

unauthorized  and  repudiated,  cannot  be  ratified,  54. 

oral  modification  of,  required  to  be  in  writing,  57. 

modification  of,  57. 

president  of  board  has  no  special  right  to  modify,  57. 

ratification  of,  58. 

only  those,  within  authority  to  make  may  be  ratified,  58. 

void,  cannot  be  ratified,  58. 

392 


INDEX 

[References  are  to  sections.] 

CONTRACTS  —  Continued. 

ratification  of,  may  be  by  accepting  benefits,  58. 

ratification  of,  may  be  by  voting  of  district  to  settle  disputed 
claim,  58. 

personal,  cannot  be  ratified  by  board  or  district,  58. 

beyond  authority  of  board,  may  be  ratified  by  district,  58. 

void  because  made  by  minority,  may  be  ratified  by  majority,  58. 

board  may  ratify,  of  de  facto  officers,  58. 

made  prior  to  existence  of  corporation  may  be  ratified  by  it,  58. 

subsequent  board  cannot  ratify  illegal,  of  preceding  board,  58. 

use  for  long  time  may  ratify  illegal,  58. 

made  at  illegally  held  meeting  may  be  ratified,  58. 

ultra  vires,  59. 

in  excess  of  amount  voted  by  district,  59. 
CONTRACTORS'  BONDS, 

statute  requiring,  is  constitutional,  32. 

may  be  exacted  at  common  law,  32. 

conditioned  to  pay  all  debts  incurred,  32. 

conditioned  to  finish  building  free  from  mechanics'  liens  is  gener- 
ally void,  32. 

school  directors'  functions  in  exacting,  are  ministerial,  32. 

failure  to  take,  as  required  by  statute,  makes  trustees  liable,  32. 

materialman  has  right  of  action  on,  32. 

materialman  may  be  estopped  to  claim  damages,  32. 

defects  in,  32. 

school  district  may  be  municipal  corporation  as  to,  32. 

required  but  not  taken,  effect  of  failure,  32. 

object  of  filing,  is  to  give  notice,  32. 

filing,  after  materials  are  furnished,  32. 
CONVERSION, 

by  directors,  district  not  liable,  27. 
CONVEYANCE.    See  also  Transportation. 

of  school  property,  40. 

valid  deed  of,  40. 

execution  of  deed  of,  40. 

"for  school  purposes,"  40. 
CORPORAL  PUNISHMENT, 

right  of  teacher  to  inflict,  70,  71. 
CORPORATION, 

of  town  and  school  district  may  be  distinct,  15,  19. 

may  enjoin  illegal  contract  to  build  schoolhouse,  30. 

is  taxable  to  full  amount  of  capital  stock,  121. 

393 


INDEX 

[References  are  to  sections.] 

COUNSEL.    See  also  Attorney's  Fees. 

employing,  61. 

emiDloyment  of,  for  defense,  15. 
COUNTY  SUPERINTENDENT, 

belongs  to  executive  department,  42. 

decision  of,  to  consolidate  schools  temporarily,  not  subject  to 
collateral  attack,  20. 

is  liable  to  damages  for  malicious  act,  42. 

powers  of,  42. 

duties  of,  42. 

records  of,  must  show  jurisdiction,  42. 

dismissal  of,  42. 

fees  of,  42. 

discretion  of,  42. 

salary  fixed  by  statute,  42. 

privileged  communications  of,  42. 

slander  or  libel  by,  42. 

acceptance  of  office  of,  vacates  any  office  formerly  held,  42. 

qualifications  of,  42. 

appeal  to,  42. 

acts  of  de  facto,  48. 
COURTS, 

cannot  interfere  with  legislative  control,  100,  102, 

D 

DEBATES, 

requiring  pupils  to  participate  in,  89. 
DEBTS, 

of  old  district,  how  divided,  20. 

statutes  transferrmg,  to  new  district  held  constitutional,  20. 

contracted  in  excess  of  limit,  54. 

contracted  without  authority,  59. 

of  school  may  be  payable  in  bills  of  State  bank,  111. 
DEED.    See  also  Conveyance. 

"for  school  purposes,"  real  estate  itself  must  be  so  used,  40. 

consideration  in  a,  40. 
DE  FACTO.    See  Officer;  School  Districts. 
DE  JURE.    See  Officer;  School  Districts. 
DEMAND, 

unnecessary  when  district  has  voted  not  to  pay  claim,  26. 
DETENTION, 

as  a  punishment,  91. 

394 


INDEX 

[References  are  to  sections.] 

DIALOGUES, 

requiring  pupils  to  participate  in,  88. 
DIPLOMA, 

issued  illegally  or  through  mistake,  8L 

delivery  of  a  dummy,  is  of  no  legal  effect,  81. 

refusal  to  deliver,  for  failure  to  prepare  valediction,  81. 
DISTRICT  MEETINGS, 

how  warned  and  called,  22,  23. 

power  to  warn  and  call,  are  distinct,  22,  23. 

proceedings  of  illegal,  may  be  ratified  at  legal,  22. 

application  for  call  of,  22. 

notice  of  time,  place,  and  purpose,  requirements  of,  22,  23. 

notice  must  be  as  law  directs,  23. 

may  act  only  upon  matters  specified  in  notice,  22,  23. 

effect  of  vote  on  matters  not  specified  in  notice,  23. 

opening  of,  must  be  reasonably  prompt,  22. 

must  be  conducted  fairly,  22. 

statutory  date  of  holding  annual,  is  mandatory,  22. 

may  be  held  outside  of  district,  22. 

notice  of  place  may  be  unnecessary,  23. 

adjournment  of,  may  be  soon  after  convening,  22. 

adjournment  of,  need  not  be  in  parliamentary  form,  22. 

power  of  acting  at  adjourned,  22. 

mode  provided  for  calling  must  be  followed,  23. 

called  and  held  by  rival  factions,  23. 

duty  to  call,  23. 

neglect  or  refusal  to  call,  23. 

statute  requiring  recording  of  warning  is  directory  only,  23. 

if  negative  vote  is  taken  at,  special  meeting  may  be  called  on 
same  matter,  24. 
DISTRICTS.    See  School  Distbicts. 

E 

EDUCATION.    See  also  Child. 
common  school,  what  is,  6. 
definition  of,  6. 
early,  in  Massachusetts,  1. 
English,  what  is,  6. 
in  England,  1. 
father's  duty  to  give,  7. 
mother's  duty  to  give,  8. 

395 


INDEX 

[References  are  to  sections.] 

EDUCATION  —  Continmd. 

parent's  moral  duty  to  provide,  1. 

child  had  no  right  to  demand,  7,  78. 

State  law  may  compel  father  to  give  child,  7. 

father  may  be  compelled  to  give,  out  of  his  own  estate,  7. 

admission  refused  to  child  of  insufficient,  78, 
ELECTION, 

not  necessary  that  elected  official  be  so  declared,  41. 

is  by  majority  of  votes  cast,  41. 
ELECTORS, 

who  are,  24. 

women  may  be,  24. 
EMINENT  DOMAIN, 

power  to  take  land  by,  28. 

notice  to  owner  of  land,  28. 
ENUMERATION, 

not  necessary  to  attach  children  to  district,  73. 
EPIDEMIC.    See  also  Contagious  Disease. 

of  smallpox  threatened,  exclusion  of  unvaccinated  pupils,  79. 

during,  unfit  subject  for  vaccination  may  be  excluded,  79. 
EXCLUSION.    See  also  Pupils. 

of  persons  from  schoolhouse,  34. 
EXCUSES, 

for  non-attendance  of  pupil,  14. 
EXECUTION.     See  also  Tax. 

in  some  States  levied  on  private  property,  26. 
EXPENSES, 

to  be  subsequently  paid  are  not  to  be  paid  in  advance,  33. 

"actual  traveling  expenses"  do  not  include  hotel  bills,  41. 

F 

FATHER.     See  also  Parent;  Mother;  Child. 

duty  of,  to  educate  child,  7. 

must  educate  out  of  own  estate,  7. 

may  be  compelled  to  pay  another  who  educates  child,  7. 
FEDERAL, 

government  cannot  regulate  public  schools,  3. 
FEES.     See  Tuition  Fees;  Attorney's  Fees. 

for  heating  and  lighting  not  inconsistent  with  public  schools,  5,  97. 

tuition,  may  not  be  inconsistent  with  pubHc  schools,  5, 

incidental,  for  fuel,  97. 

396 


INDEX 

[References  are  to  sections.] 

FLAG, 

salute  to,  and  pledge,  86. 
FOOTBALL  PLAYING, 

regulation  of,  93. 
FRATERNITIES.    See  Secret  Societies. 
FUNDS, 

used  to  prosecute  and  defend  actions,  26. 

no  apportionment  of,  when  district  is  changed  unless  by  statute, 
20. 

power  to  provide,  21,  107. 

sources  of,  107. 

gifts  to,  107. 

duty  of  town  to  pay  to,  of  school  district  of  larger  limits,  107. 

power  to  raise,  cannot  be  delegated,  107. 

borrowing  of  money  for,  108. 

borrowed  money  not  part  of  common  school,  108. 

borrowed  money  not  covered  by  bond  to  protect,  108. 

custodian  and  depositary  of,  100,  113. 

used  to  employ  counsel,  61. 

where  to  be  deposited,  110. 

mandamus  to  compel  award  of,  to  best  bidder,  110. 

apportionment  of,  112. 

apportionment  of,  when  district  is  divided,  112. 

ownership  of,  not  vested  by  apportionment,  112. 

in  hands  of  commissioners  not  controllable  by  superintendent, 
112. 

control  of  officials  in  matters  of  apportionment,  112. 

misapplication  of,  113. 

pa>Tnent  of,  to  unauthorized  person  is  conversion,  113. 

misapplication  by  one  director  does  not  make  others  liable,  113. 

may  not  be  paid  to  teachers  in  private  school,  113. 

power  of  legislature  over  school,  113. 

wrongfully  paid  by  officer  creates  personal  liabiHty,  113. 

illegally  paid  out  may  be  recovered,  113. 

no  authority  to  use,  for  purposes  not  voted  by  district,  113. 

public,  cannot  be  voted  for  private  use,  113. 

loans  of,  114. 

loans  of,  how  made,  114. 

loans  of,  may  create  personal  liability,  114. 

mortgages  and  notes  taken  on  loan  of,  114. 

recording  mortgages  for  loan  of,  114. 

negligence  in  management  of,  114. 

397 


INDEX 

[References  are  to  sections.] 

FUNDS  —  Continued. 
lack  of,  115. 

trustee  may  advance,  115. 
debts  cannot  be  incurred  against  future,  115. 
may  be  exempt  from  taxation,  129. 

G 

GOVERNMENT  LANDS, 

rights  of  children  on,  to  attend  school,  73. 
GRADUATE, 

definition  of  a,  81. 
GRADUATION, 

mandamus  may  compel,  81. 

exercises  are  not  a  part  of  course  of  study,  81. 
GYMNASIUM, 

authority  to  purchase  land  for,  28. 

H 

HEALTH  REGULATIONS.    See  also  Vaccination. 

enforcement  of,  79. 

power  to  adopt,  79. 
HEARING.     See  also  Teacher;  Bidder. 

must  be  given  pupil  expelled  for  misconduct,  78. 

nature  of  right  of,  78. 

decision  of  committee  on,  not  reviewable,  78. 

need  not  be  with  formality  of  a  trial,  78. 
HIGH  SCHOOL, 

is  a  public  school,  5. 
HIGHWAYS, 

may  be  secured  when  necessary,  28. 
HOTEL  BILLS.    See  Expenses. 


IMPLIED  CONTRACT, 

acceptance  of  results  may  create,  56. 
acceptance  of  illegal  act  does  not  create,  56. 
may  be  created  by  standing  by  in  silence,  56. 
cannot  arise  by  parol  where  writing  is  required,  56. 

398 


INDEX 

[References  are  to  sections.] 

INDIANS, 

separate  schools  for,  may  be  authorized  by  statute,  82. 
INDICTMENT, 

of  town  for  not  maintaining  required  school,  1  n. 
INJUNCTION, 

may  lie  against  school  district,  26. 

will  not  lie  to  restrain  collection  of  tax,  26. 

plaintiff's  petition  for,  must  show  special  damage  threatened,  29, 
43. 

to  prevent  removal  of  schoolhouse,  29. 

plaintiff's  petition  for,  must  show  that  he  is  taxpayer  and  voter, 
29. 

to  prevent  illegal  use  of  schoolhouse,  34. 

may  issue  to  prevent  use  of  funds  pending  appeal,  41. 

will  not  be  granted  when  appeal  is  provided,  41. 

threatened  injury  to  property  rights  is  necessary  to  sustain,  43. 

ma  J''  he  against  judgment  to  pay  unlicensed  teacher,  63. 

will  not  be  issued  in  case  of  unlawful  discharge  of  teacher,  69. 
INSURANCE, 

school  trustees  may  provide,  21. 

paid  for  burned  schoolhouse  not  garnishable,  30. 
INTOXICANTS, 

statutes  against  sale  of,  to  students,  39. 

sale  of,  prohibited  in  specified  localities  is  constitutional,  39. 
INTRUDER.    See  Usurper. 
IOWA, 

exclusion  of  colored  children  from  schools  in,  82. 

K 

KANSAS, 

exclusion  of  colored  children  from  schools  in,  82. 
KNOWLEDGE, 

of  defective  condition,  33. 

of  defective  condition,  may  be  inferred  or  presumed,  33. 

L 

LAND, 

acquired  for  playground  and  gymnasium,  28. 

acquired  without  authority  and  for  unauthorized  purposes,  29. 

reconveyance  of,  where  title  never  vested,  29. 

vendor  of,  charged  with  notice  of  vendee's  authority,  29. 

399 


INDEX 

[References  are  to  sections.] 

LEASE, 

of  school  lands,  40. 
LEGISLATURE, 

may  compel  parent  to  educate  child,  13. 

has  primary  control  of  public  schools,  15. 

construction  of  acts  of,  15. 

has  primary  authority  to  organize  districts,  17. 

may  delegate  power  to  organize  districts,  17. 

may  delegate  power  to  alter  districts,  20. 

control  of,  over  districts  is  plenary,  17,  20. 

power  of,  to  alter  and  abolish  districts,  20. 

having  tried  one  plan  may  change  and  try  another,  100. 

power  not  exhausted  by  exercise,  100. 

courts  cannot  interfere  when  control  is  in,  100,  102. 
LIBEL.    See  Privileged  Communications. 
LOCAL, 

authorities,  who  are,  99. 

control  of  schools,  100. 
LOCATION.    See  also  Site. 

of  schoolhouse,  authority  to  select,  29. 

may  be  changed  as  often  as  desired,  29. 

injunction  to  prevent  change  of,   must  show  special  damage 
threatened,  29. 
LOCO  PARENTIS, 

teacher  stands  in,  71,  78. 

M 

MAJORITY, 

of  voters,  what  is  meant  by,  24,  41. 

of  names  on  petition,  18. 

vote,  what  is  meant  by,  116. 
MALICE, 

must  be  shown  in  actions  involving  discretion  of  school  officers, 
63. 
MANDAMUS, 

will  lie  to  compel  directors  to  provide  schoolhouse,  21,  30. 

may  lie  to  enforce  judgment,  26. 

as  correlative  with  injunction,  30. 

may  not  be  used  to  control  discretion  in  approving  contract,  54. 

may  compel  issuance  of  teacher's  certificate,  63. 

may  compel  examination  of  teacher,  63. 

400 


INDEX 

[References  are  to  sections.] 

MANDAMUS  —  Continued. 

may  compel  recognition  of  teacher,  63. 

may  compel  employment  of  licensed  teacher,  63. 

may  compel  reinstatement  of  pupil,  78,  80. 

will  not  lie  in  case  of  unlawful  discharge  of  teacher,  69. 

to  compel  establishment  of  colored  school,  82. 
MATERIALMEN.    See  Claim;  Contractors'  Bonds. 
MECHANICS'   LIEN, 

only  express  statute  can  authorize,  on  schoolhouse,  31. 

public  policy  forbids,  on  schoolhouse,  3L 

as  to,  a  schoolhouse  is  a  "public  improvement",  31. 

may  lie  on  money  due  contractor,  31. 
MEETINGS  OF  SCHOOL  DIRECTORS.    See  also  District 
Meetings. 

held  outside  of  district  are  void,  50. 

with  all  members  present  may  act  even  if  not  called,  50,  51. 

statutory  requirement  to  keep  records  of,  is  directory  only,  50. 

notice  of,  51. 
MICHIGAN, 

exclusion  of  colored  children  from  schools  in,  82. 
MINIMUM  WAGE.    See  Constitutional. 
MISCONDUCT, 

failure  of  pupil  to  maintain  given  standard  is  not,  78. 
MISTAKE, 

of  school  officer,  malice  to  be  shown  in,  63. 
MORTGAGE, 

securing  loan  of  school  funds,  114. 

sale  under,  114. 
MOTHER.     See  also  Father;  Parent;  Child. 

duty  of,  to  educate  child,  8. 

of  pupil  must  refrain  from  acts  destructive  of  discipline,  8. 

has  not  full  custody  of  child  during  lifetime  of  father,  8. 

attendance  order  on  father  cannot  be  subsequently  enforced 
against,  8. 

when  widowed,  may  not  be  chargeable  for  child's  education,  8. 

may  be  convicted  for  neglect,  8. 
MUNICIPALITY, 

usually  distinct  from  school  district  of  same  boundaries,  15,  19. 

cannot  usually  contract  for  school  district,  15. 
MUSIC, 

power  to  provide  teaching  of,  implies  power  to  purchase  piano, 
35. 

401 


INDEX 

[References  are  to  sections.] 

MUSIC  —  Continued. 
may  be  prescribed  as  a  study,  98. 

request  of  parent  that  child  be  excused  from  lessons  in,  106. 
exclusion  of  child  for  refusal  to  study,  106. 

N  ■ 
NEGLIGENCE, 

school  directors  free  from,  not  responsible  for  agent's,  33. 
NEGROES.    See  also  Separate  Schools. 

rights  of,  in  public  schools,  82. 

cannot  be  excluded  entirely  from  public  schools,  82. 

cannot  be  taxed  for  wliite  schools,  82. 
NON-RESIDENTS, 

orphan  children  boarding  in  district  as,  73. 

not  entitled  to  free  tuition,  75,  76. 

may  not  be  admitted  at  less  rate  than  residents  pay  by  taxation, 
75. 

may  not  be  admitted  to  exclusion  of  residents,  75, 

may  not  be  necessary  to  notify  of  amount  to  be  charged  to,  75. 

contract  to  admit  may  be  invalid  for  want  of  authority,  75. 

contract  between  districts  may  be  necessary  before  admitting, 
75. 
NOTICE.    See   also   Notice   of   District   Meeting;    Bonds; 
Contracts;  Eminent  Domain. 

of  defective  premises,  33. 

waiver  of,  by  discharged  teacher,  69. 
NOTICE  OF  DISTRICT  MEETING, 

must  be  as  law  directs,  23. 

to  form  new  district,  23. 

is  jurisdictional,  requirement  of,  23. 

is  jurisdictional,  posting  of,  23. 

may  or  may  not  be  waived  by  appearance,  23. 

need  not  state  time  fixed  by  statute,  23. 

requires  signatures  of  majority  of  directors,  23. 

must  express  object  clearly  unless  annual,  22,  23. 

fixed  at  annual  meeting  need  not  be  specified  subsequently,  23. 

computing  time  of,  23. 

0 
OATH, 

to  be  taken  by  attendance  officers,  96. 

402 


INDEX 

[References  are  to  sections.] 

OFFICE, 

of  school  officer  becomes  vacant  when  residence  is  set  off  from 

district,  20. 
incompatible,  may  not  be  held,  43. 
acceptance  of,  ipso  facto  vacates  former,  43. 
of  trustee  and  teacher  are  incompatible,  64. 
OFFICER.    See  also  Public  Officers. 
residence  of,  set  out  of  district  vacates  office,  20. 
sufficiency  of  return  of,  in  stating  service  of  warning,  23. 
de  facto,  cle  jure  and  intruders,  48. 
definition  of,  de  facto,  48. 
definition  of,  de  jure,  48. 
color  of  election  or  appointment  of,  48. 
color  of  right  is  essential  to  de  facto,  48. 
cannot  be  de  facto,  under  unconstitutional  statute,  48. 
who  may  be,  de  facto,  48. 
acts  of,  de  facto  are  generally  valid,  48. 
acts  of,  de  facto  may  be  ratified,  58. 
acts  of,  de  jure  are  valid,  48. 

distinction  between  acts  of,  de  facto  and  de  jure,  48. 
evidence  of  reputation  that  one  is  not,  de  jure  is  not  admissible, 

48. 
elective,  must  be  a  qualified  voter,  48. 
school,  not  liable  for  error  in  judgment,  91. 


PARENT.    See  also  Father;  Mother. 

may  reasonably  direct  child's  study,  11. 

right  of,  not  invaded  by  compulsory  attendance  laws,  13. 

may  so  act  as  to  deprive  child  of  admission,  78. 

teacher  stands  in  place  of,  71,  78. 

when,  may  maintain  action  for  exclusion,  78. 
PARENT'S  POVERTY, 

may  excuse  neglect  of  child's  education,  9. 
PENNSYLVANIA, 

abolishment  of  separate  schools  in,  82. 
PERSONAL  INJURIES, 

district  not  liable  for  negligent,  27. 

towns  and  cities  may  be  liable  for,  33. 
PERSONAL  PROPERTY, 

care  of,  35. 

403 


INDEX 

[References  are  to  sections.] 

PERSONAL   PROPERTY  —  Continued. 

duty  to  care  for,  does  not  give  power  to  purchase,  35. 

purchase  of  unnecessary  articles  of,  35. 

rescission  of  contract  for,  35. 
PETITION, 

for  estabUshment  or  alteration  of  districts,  18. 

right  to  withdraw  name  from,  18,  19. 

what,  must  set  forth,  18. 

requirement  as  to  majority  of  names  on,  18. 

may  be  necessary  to  change  district,  20. 
PHYSICIAN.    See  Health  Regulations. 
PISTOL, 

teacher  may  take,  away  from  pupil,  85. 
PLAYGROUND, 

authority  to  purchase  land  for,  28. 
POWERS, 

of  school  districts  are  created  by  statute,  15. 

of  school  districts  are  very  limited,  15. 

and  management  of  districts,  21. 

not  enlarged  nor  diminished  by  usage,  23. 

to  provide  land  and  buildings,  28. 
PRESIDENT, 

of  board  of  school  directors  has  no  special  authority  to  contract, 
57. 

has  no  special  right  to  modify  contract,  57. 
PRESUMPTION, 

as  to  legality  of  de  facto  districts,  16,  26. 
PRIVILEGED  COMMUNICATIONS, 

respecting  teacher,  42. 
PROMISSORY  NOTES, 

unauthorized,  bind  signers  and  not  district,  54. 

authority  of  quasi  corporation  to  give,  109. 

vote  of  electors  may  be  necessary  to,  109. 

of  districts,  not  subject  to  law  merchant,  109. 

signatures  of  directors,  109. 
PROPERTY, 

of  old  district,  how  divided,  20. 
"PROVIDE," 

meaning  of  term,  35. 

distinguished  from  "select,"  35. 
PRUDENTIAL  COMMITTEE, 

may  compromise  claims,  43. 

404 


INDEX 

[References  are  to  sections.] 

PRUDENTIAL  COMMITTEE  —  Continued. 

is  general  financial  agent,  43. 

may  furnish  fuel  to  district,  43. 
PUBLIC  OFFICER, 

after  term  of  office,  cannot  amend  records,  52. 

responsibility  of,  for  loss  of  public  moneys,  60. 

school  teacher  is  not,  69. 

attendance  officer  is,  96. 
PUBLIC  SCHOOLS, 

and  "common  schools"  are  synonymous,  4. 

definition  of,  5. 

early,  in  Boston,  1. 

characteristic  features  of,  5. 

Federal  government  has  no  power  over,  2,  3. 

public  support  as  affecting  the  term,  5. 

power  to  establish,  2. 

what  are,  4,  5. 

taxation  as  affecting  the  term,  5. 

high  schools  are,  5. 

normal  schools  are,  5. 

and  parochial  schools  distinguished,  5. 

non-compulsory  system  of,  12. 
■  compulsory  system  of,  13. 

are  matter  of  State  and  not  municipal  concern,  15. 

regulation  of,  is  primarily  in  legislature,  15. 

of  city  wards  are  district  schools,  15. 

statute  establishing  new  system  for,  20. 

are  matters  of  State  concern,  100. 

authority  of  State  over,  100. 
PUBLISHERS'  BONDS, 

conditioned  to  secure  standard  quality  and  price,  105. 

action  on,  105. 

only  one  recovery  to  be  had  on,  105. 

imperfect  books  supplied,  105. 

surety  on,  not  liable  for  prior  breach,  105. 

pleas  in  actions  for  breach  of,  105. 

burden  of  proof  in  actions  on,  105. 

adoption  of  book  not  set  out  in,  105. 

approval  of,  105. 

breach  of,  not  made  by  sales  of  third  parties,  105. 

acceptance  of  smaller  sum  in  satisfaction  of  judgment  obtained 
on,  105. 

405 


INDEX 

[References  are  to  sections.] 

PUBLISHERS'    BONDS  —  Continued. 

may  be  subject  to  license,  104. 

obligation  of,  may  not  be  impaired  by  legislature,  104. 

not  to  be  broken  because  books  too  advanced,  104. 

use  of  books  adopted  under,  may  be  compelled  by  mandamus,  104. 

defense  of  altered  books  on,  104. 

legality  of,  not  to  be  questioned  by  third  party,  104. 

as  affected  by  illegal  change,  104. 

is  made  when  offer  is  accepted  by  the  legislature,  104. 

imperfect  books  supplied  on,  105. 
PUNISHMENT, 

of  pupil,  object  of,  70. 

of  pupil,  malice  m,  70. 
PUPILS, 

teacher's  report  of  attendance  of,  62. 

right  of  teacher  to  suspend  or  expel,  71. 

authority  of  teacher  over,  is  not  limited  to  rules,  71. 

rights  and  duties  of,  72. 

cannot  demand  admission  on  status  of  citizenship,  72. 

right  of,  to  attend  school  is  not  a  property  right,  72. 

over  twenty-one  are  subject  to  rules,  72. 

admission  of,  73. 

illegal  refusal  to  admit,  73. 

duties  of  school  authorities  toward,  73. 

refused  admission,  mandamus  is  proper  remedy,  73. 

control  of,  77. 

control  of,  extends  to  out-of-school  acts  detrimental  to  welfare  of 
school,  77. 

control  of,  is  subject  to  rights  of  parent,  77. 

publishing  poem  satirizing  regulations  of  school  may  be  sus- 
pended, 77. 

profane,  may  be  ejected  from  schoolhouse,  77. 

exclusion,  suspension  and  expulsion  of,  77. 

may  be  excluded  for  acts  of  parent,  78. 

may  be  excluded  though  no  rule  violated,  78. 

may  be  excluded  for  refusing  to  answer  question  concerning  his 
conduct,  78. 

unlawfully  excluded,   have  right  of  action  when  exclusion  is 
malicious,  otherwise  not,  78. 

unlawful  exclusion  of,  gives  parent  right  of  action,  78. 

not  to  be  suspended  for  accidental  injury  to  property,  78. 

not  to  be  suspended  for  trivial  offense,  78. 

406 


INDEX 

[References  are  to  sections.] 

PUPILS  —  Continued. 

may  be  suspended  for  malicious  act,  but  not  for  accidental  or 
negligent  act,  78. 

may  be  suspended  for  persistent  disobedience,  78. 

expelled  for  careless  act  must  be  reinstated,  78. 

expelled,  must  have  opportunity  to  be  heard,  78. 

exclusion  of,  is  not  arbitrary  power,  78. 

exclusion  of,  for  failure  to  maintain  scholarship,  78. 

exclusion  of,  for  refusing  to  allow  another  pupil  to  revise  work,  78. 

exclusion  of,  for  drunkenness  outside  of  school,  78. 

exclusion  of,  for  criticising  school  authorities,  78. 

exclusion  of,  for  negligee  attire,  78. 

exclusion  of,  for  failure  to  comply  with  illegal  order,  78. 

exclusion  of,  for  failure  to  present  certificate  of  vaccination,  79. 

exclusion  of,  for  refusal  to  take  study  which  parent  requests  he 
be  excused  from,  80. 

exclusion  of,  rests  in  school  committee,  78. 

exclusion  of,  by  teacher,  78. 

no  action  for  exclusion  of,  unless  done  by  one  in  authority,  78. 

action  against  town  for  unlawful  exclusion  of,  78. 

sent  home  as  a  punishment  is  not  an  exclusion,  78. 

reinstatement  of,  80. 

gross  vulgarity  of,  forfeits  right  to  reinstatement,  80. 

application  for  reinstatement  of,  80. 

cannot  be  compelled  to  pay  a  sum  of  money  as  a  condition  pre- 
cedent to  reinstatement,  80. 

cannot  be  expelled  during  vacation,  80. 

graduation  of,  81. 

record  of,  rests  in  discretion  of  committee,  81. 

whether  white  or  colored,  82. 

transportation  of,  83. 

expulsion  of,  for  failure  to  pay  incidental  fees,  97. 

punishment  of,  for  failure  to  take  study  prohibited  by  parent,  106. 
PURCHASE, 

unlawful,  does  not  create  implied  contract,  56. 

unlawful,  seller's  remedy  in  case  of,  56. 

Q 

QUANTUM  MERUIT, 
no  recovery  by  teacher  on,  when  contract  made  orally  and  statute 
requires  writing,  64. 

407 


INDEX 

[References  are  to  sections.] 

QUANTUM   MERUIT  —  Continned. 
if  statute  does  not  require  writing,  may  recover  on,  64. 
when  recovery  on,  may  be  had,  65, 

R 

RATIFICATION.    See  also  Contracts  ;  Board  of  Education. 

power  of,  of  contract  to  build  schoolhouse,  28. 

acts  may  operate  as,  28. 

of  contract  required  to  be  in  writing,  54. 
RECONSIDERATION, 

of  vote  may  be  had  at  special  meeting  called  on  same  matter,  24. 

of  two-thirds  vote  cannot  be  by  bare  majority,  24. 
RECONVEYANCE, 

unnecessary  to  recovery  of  purchase  price  where  title  never 
vested,  29. 
RECORDS.    See  also  Contracts  ;    Clerk. 

reputation  may  be  proof  of  legality  of  district  when  there  are 
no,  16. 

entering  upon,  consummates  formation  of  district,  17. 

of  district  meetings  must  be  kept,  24. 

statutory  requirement  as  to  form  not  mandatory,  25. 

statutory  requirements  of  ayes  and  nays  does  not  apply  to  unani- 
mous vote,  25. 

entries  by  secretary  pro  tern,  25. 

not  to  be  amended  to  agree  with  court  decision,  25. 

original,  are  evidence,  25. 

contents  of  last,  may  be  proved,  25. 

of  County  Supermtendent,  42. 

statutory  requirement  for  school  board  to  keep,  is  directory,  50. 

should  be  kept,  52. 

all  acts  not  necessarily  recorded,  52. 

past  official  cannot  correct,  52. 

contract  not  entered  on,  not  invalidated,  54. 

names  of  directors  voting  to  dismiss  teacher  should  be  on,  69. 

failing  to  show  two-thirds  vote  as  required  by  statute,  125. 

correcting  of,  of  town,  125. 

of  votes  to  be  only  as  declared,  125. 
REINSTATEMENT.    See  Pupils. 
RELIGIOUS, 

worship,  68. 

songs,  singing  of,  68. 

408 


INDEX 

[References  are  to  sections.] 

RELIGIOUS  —  Continued. 

rite  or  ceremony,  rule  compelling  pupils  to  join  in  is  invalid,  68. 

obligation,  expulsion  of  pupil  for  absence  through  sense  of,  68. 
RELIGIOUS  GARB, 

wearing  of,  by  teachers,  67. 
RELIGIOUS  PURPOSES, 

use  of  schoolhouse  for,  34. 
REMOVAL, 

of  officer,  requires  charges,  notice  and  hearing,  4L 
REPAIRS, 

school  trustees  may  contract  for,  2L 

expense  for,  to  be  subsequently  paid  is  not  payable  in  advance,  33. 

authority  to  expend  specified  amount  for,  does  not  authorize 
greater  expense,  33. 
REPORTS, 

of  teachers,  62. 
REPUTATION, 

as  supplying  proof  of  legality  of  district,  16. 
RHETORICAL  EXERCISES, 

requiring  pupils  to  participate  in,  88. 
RULES  AND  REGULATIONS, 

power  of  adoption,  84. 

prescribed  by  teacher,  85. 

of  school  board  waived  by  inconsistent  action,  50. 

must  not  be  inconsistent  with  statute  or  charter,  43. 

authority  of  teacher  over  pupils  not  limited  to,  71. 

bind  parents  as  well  as  pupils,  78. 

against  matters  harmful  per  se  not  necessary,  78,  85. 

are  necessary  against  matters  harmless  per  se,  78,  85. 

as  to  vaccination,  79. 

how  tested,  84. 

implied  power  to  make,  84. 

manner  of  establishing,  85. 

need  not  be  of  record  or  formal  vote,  85. 

need  not  be  promulgated,  85. 

reasonableness  and  vaHdity  of,  86. 

application  of,  must  be  adapted  to  each  individual,  86. 

against  absence  from  school,  86. 

enforcing,  in  violation  of  law  cannot  be  justified,  86. 

compelling  pupil  injuring  another  to  accompany  him  home,  86. 

must  be  needful  to  school  government,  87. 

school  board's  discretion  on,  subject  to  control,  87. 

409 


INDEX 

[References  are  to  sections.] 

RULES  AND   REGULATIONS  —  Conimwed. 
invading  rights  of  parents,  95. 
on  rhetorical  exercises  and  dialogues,  88. 
on  compositions  and  debates,  89. 
on  tardiness,  90. 
on  detention,  91. 
on  secret  societies,  92. 
on  football  playing,  93. 
on  acts  out  of  school  hours,  93,  95. 
on  pupils  going  directly  home  after  school,  94. 
on  conduct  outside  of  school,  95. 
on  attending  social  parties,  95. 
on  evening  study,  95. 
on  truancy,  96. 
on  carrying  fuel,  87. 
on  salute  to  flag  and  pledge,  86. 

S 
SALE, 

of  school  lands  must  be  for  money,  and  sometimes  for  cash,  40. 

of  building  rescinded  for  fraud,  40. 
SALOONS, 

licensing  of,  near  schools,  39. 
SCHOOL.    See  also  Consolidation. 

what  is  a,  4. 

must  have  teacher  and  pupils,  4. 

cannot  recover  for  tuition  in  unapproved,  26. 

need  not  always  be  established  in  isolated  territory,  37. 

closing  of,  for  small  attendance,  45. 

debt  may  be  payable  in  bills  of  State  bank,  111. 
SCHOOL  AGE, 

constitutional  provision  as  to,  may  not  be  a  limitation,  74. 

child  very  near  school  age  may  be  admitted,  74. 
SCHOOL  COMMITTEES.     See  also  School  Directors. 

acts  of  joint,  when  districts  have  consolidated,  20. 

may  provide  rooms  and  employ  teachers  when  district  fails  to 
act,  28. 

are  public  officers,  24,  33. 
SCHOOL  DIRECTORS.    See  also  School  Committee;    Pru- 
dential Committee  ;     Board  of  Education  ;     Meetings  ; 
Consolidation. 

equivalent  terms  used,  43  n. 

410 


INDEX 

[References  are  to  sections.] 

SCHOOL   DIRECTORS  —  Continued 
are  public  officers,  24,  33,  43. 
are  not  merely  agents,  24,  33. 
may  disregard  vote  of  tow7i,  24. 
providing  safe  but  unsightly  schoolhouses  are  not  removable  for 

neglect  of  duty,  28. 
removal  of,  for  improperly  locating  schoolhouse,  28. 
removal  of,  for  failure  to  pro\ade  sufficient  schoolhouses,  28. 
removal  of,  for  failure  to  consider  request  of  citizens,  28. 
removal  of,  for  failure  to  build  new  schoolhouses,  28. 
powers  of,  43,  50. 

election  of,  within  thirty  days  under  statute  is  directory,  43. 
irregularities  in  election  of,  43. 
statutory  requirement  of  ballot  is  mandatory,  43. 
unanimous  vote  may  be  viva  voce,  43. 
tenure  of  office  of,  43. 
beginning  of  tenn  of  new  members  of,  43. 
new  members  help  organize  new  board,  43. 
casting  lots  to  decide  term  of  office,  43. 
responsibility  of,  for  acts  beyond  authority,  43. 
implied  powers  of,  43. 
knowledge  of  persons  dealing  with,  43. 
limitations  of,  presumed  to  be  known,  43. 
by-law  adopted  by,  presumed  to  be  known,  43. 
may  not  contract  away  responsibility,  43. 
entitled  only  to  statutory  compensation,  43. 
may  not  employ  a  member  at  district  expense,  43. 
statutory  power  cannot  be  taken  away  by  vote  of  district,  43. 
sometimes  classed  as  special  agents,  43. 
hold  fiduciary  relations  with  district,  43. 
power  of,  to  appoint  superintendent,  43. 
no  implied  power  to  appoint  superintendent  of  music,  43. 
no  implied  power  to  offer  rewards  for  detection  of  crime,  43. 
no  implied  power  to  fine  employees,  43. 
may  become  criminally  liable,  43. 

have  no  right  to  exact  sum  from  teacher  for  giving  employment,  43. 
in  want  of  schoolhouse  must  maintain  a  school,  43. 
performing  duty  not  punishable  for  neglect  of  another,  43. 
wrongful  action  creates  liability  against  corporation,  43. 
cannot  hold  incompatible  offices,  43. 
must  act  together,  44. 
must  act  in  manner  prescribed  by  law,  44. 

411 


INDEX 

[References  are  to  sections.] 

SCHOOL   DIRECTORS  —  Continued. 
must  act  as  a  board  convened,  44. 
must  act  by  a  majority  vote,  44. 
act  of  minority  is  not  sufficient,  44. 
if  minority  of,  refuse  to  act,  44. 
majority  may  act,  44. 
majority  may  not  act  separately,  44. 
quorum  of  board  may  act,  44. 
individual  member  acting  without  the  board's  authority  cannot 

bind,  44. 
mdividual  acts  may  be  ratified,  44. 
casual  conversations  among,  44. 
binding  action  is  taken  only  at  a  meeting,  44. 
may  act  if  present  although  not  formally  called,  44. 
must  exercise  judgment  and  discretion,  45. 
discretion  of,  will  not  be  disturbed  by  court,  45. 
may  make  rules,  prescribe  studies,  and  select  text-books,  45. 
may  enforce  discipline,  45. 
may  suspend  and  expel,  45. 
what  declaration  against,  must  state,  45, 
discretion  in  illegal  acts  will  be  restrained,  45. 
when  evenly  divided,  court  will  act,  45. 
qualifying  of,  46. 
failure  to  qualify,  46. 
when  qualifjdng  day  is  a  legal  holiday,  46. 
removal  of,  47. 
vacating  office,  47. 
insubordination  of,  47. 
failure  of,  to  organize,  47. 
failure  of,  to  appoint  teachers,  47. 
notice  and  hearing  may  be  necessary  to  removal,  47. 
no  removal  of,  for  individual  acts,  47. 
failure  to  record  election  of,  47. 
unaccepted  resignation  does  not  vacate,  47. 
resignation  not  to  be  inferred,  47. 
removal  of,  from  district,  47. 
how  office  of,  may  be  abandoned,  47. 
judicial  determination  of  vacancy  may  be  necessary,  47. 
not  removable  for  misfeasance,  47. 
as  officers  de  facto,  de  jure  and  intruders,  48. 
de  facto,  may  make  valid  contract,  48. 
right  of,  de  facto  cannot  be  questioned  collaterally,  48. 

412 


INDEX 

[References  are  to  sections.] 

SCHOOL   DIRECTORS  —  Continued. 
two  boards  of,  each  claiming  office,  48. 
de  jure,  may  prevent  contract  with,  de  facto,  48. 
dividing  into  two  equal  factions  may  be  removed,  49. 
rules  of,  are  waived  by  inconsistent  action,  50. 
one  dealing  with,  presumed  to  have  knowledge  of  their  limited 

authority,  54. 
must  contract  as  unit,  54. 

by  acts  may  ratify  contract  informally  entered  into,  58. 
cannot  bind  district  in  excess  of  amount  voted,  59. 
cannot  issue  orders  against  future  funds,  54,  59. 
have  no  power  to  waive  report  required  by  statute,  62. 
violating  contract  with  teacher,  district  liable,  64. 
may  ratify  invalid  contract  with  teacher  by  conduct,  64. 
under  duty  to  prepare  contract  cannot  object  to  form,  64. 
duty  to  know  what  conditions  teacher  claims  to  act  under,  64. 
cannot  set  up  own  wrong  in  defense  to  claim,  64. 
statute  requiring,  to  contract  with  teacher,  district  vote  thereon 

may  be  disregarded,  64. 
two  members  of,  independent  of  third  cannot  lawfully  employ 

teacher,  64. 
cannot  contract  so  as  to  divest  future  boards  of  rights,  64. 
neglect  of,  to  raise  funds  for  teachers'  salary  creates  personal 

liability,  65. 
acting  within  scope  of  duties  liable  only  for  wanton  or  malicious 

acts,  69. 
no  right  of  action  against,  for  exclusion  of  child,  72. 
illegal  refusal  of,  to  admit  pupil,  73. 
illegal  acts  of  good  faith  by,  in  excluding  pupils,  78. 
SCHOOL     DISTRICTS.    See  also  Boundabies  of  Districts; 

Consolidation. 
meaning  of  jomt,  fractional,  separate,  and  independent,  13  L 
status  of,  15. 

are  quasi  corporations,  15. 

are  municipal  corporations  for  some  purposes,  15. 
are  created  by  general  statutes,  15. 
do  not  act  under  charters,  15. 
can  act  only  in  corporate  capacity,  15. 
are  bound  by  what  acts,  15. 
not  usually  part  of  municipal  government,  15. 
status  of,  in  Connecticut,  15. 
as  separate  from  town  of  same  limits,  15,  19,  26. 

413 


INDEX 

[References  are  to  sections.] 

SCHOOL   DISTRICTS  —  Continued. 

de  facto,  16. 

de  facto,  cannot  be  collaterally  attacked,  16,  26. 

who  may  attack  de  facto,  16. 

powers  of  de  facto,  16. 

presumption  as  to  de  facto,  16. 

formation  and  organization  of,  17. 

independent,  are  against  policy  of  law,  17. 

erected  to  separate  wealthier  and  poorer  classes,  17. 

act  of  establishing,  when  consummated,  17. 

limits  of,  not  changed  by  enlargement  of  town,  19. 

power  to  alter,  20. 

legality  of  alteration,  20. 

hold  property  in  trust  for  town,  20. 

powers  and  management  of,  21. 

non-liability  of,  in  tort,  27. 

will  not  be  bound  for  unauthorized  purchase  of  land,  29. 

action  of  trespass  not  maintainable  by  inhabitants  of,  38. 

vote  of,  on  statutory  requirement  is  advisory  only,  64. 

credit  of,  not  to  be  pledged  except  by  statute.  111. 

may  be  compelled  to  enforce  its  legal  rights,  113. 

two-thirds  vote  to  reestablish  to  be  shown  on  record,  125. 
SCHOOLHOUSE.    See  also  Building  Committee. 

title  is  in  district,  20. 

title  passes  to  new  district  when  formed,  20. 

power  to  provide,  21,  28. 

in  Indiana  may  be  used  for  any  township  purpose,  21. 

not  to  be  used  for  other  than  school  purposes,  21. 

authority  to  select  site  for,  21,  29. 

in  repair  of,  district  not  liable  for  tort,  27. 

what  is  a,  28. 

power  to  determine  cost  of,  28. 

power  to  contract  for,  28,  30. 

distance  of  two  miles  to  walk  to,  not  unreasonable,  28. 

removal  of  directors  for  failure  to  pro\'ide,  28. 

of  separate  schools  may  be  exchanged,  28. 

legal  vote  of  district  to  build,  is  mandatory,  30. 

authority  to  erect,  30. 

abandoned  by  contractor  may  be  finished  b^y  directors,  30. 

contract  with  director  to  superintend  erection  of,  is  void,  30. 

building  committee  may  employ  a  member  to  superintend  erec- 
tion of,  30. 

414 


INDEX 

[References  are  to  sections.] 

SCHOOLHOUSE  —  Continued. 

duty  to  care  for,  33. 

expense  authorized  in  building,  must  be  taken  note  of  by  con- 
tractor, 30. 

contractor  may  rely  upon  location  pointed  out  by  committee,  30. 

committee  to  build,  are  agents  of  district,  30. 

illegal  contract  to  build,  may  be  enjoined,  30. 

injunction  to  prevent  erection  of,  30. 

mandamus  to  compel  erection  of,  30. 

no  express  authority  to  build,  is  necessary  in  Georgia,  30. 

not  liable  to  levy  on  execution,  30. 

insurance  money  on,  not  garnishable,  30. 

condemnation  of  dilapidated,  33. 

may  not  be  used  for  other  than  district  or  educational  purposes, 
33. 

need  not  be  erected  for  school  purposes  only,  34. 

district  may  not  part  with  control  of,  for  great  length  of  time,  34. 

exclusions  of  persons  from,  34. 

not  necessary  to  build,  in  isolated  territory,  37. 

appendages  to,  36. 

burning  of,  not  arson  at  common  law,  38. 

burning  of,  is  arson  usually  by  statute,  38. 

action  of  trespass  to,  may  be  maintained  by  school  directors,  38. 

not  maintainable  by  inhabitants,  38. 

offenses  against,  38. 

contract  to  buy,  if  awarded  contract  for  new,  is  illegal,  40. 

when  unfit  may  be  sold,  40. 

State  Superintendent  cannot  reverse  action  of  school  directors 
deciding  to  build,  41. 

want  of,  does  not  relieve  directors  from  maintaining  school,  43. 

acceptance  of,  implies  contract  to  pay  for  it,  56. 

illegally  built,  no  right  to  levy  tax  for,  56. 

illegally  built,  acceptance  does  not  create  implied  contract,  56. 

amount  voted  by  district  to  build,  not  appropriated  in  letting 
contract  may  be  used  later,  57. 

unauthorized  repairs  on,  not  ratified  by  use,  58. 

unauthorized  expenditures  in  construction  of,  not  ratified  by  use, 
58. 

occupancy  and  use  of,  may  not  be  ratification,  58. 

expenditure  for,  in  excess  of  authorized  amount  may  be  ratified, 
58. 

electors  decide  what  sort  of,  shall  be  built,  59. 

415 


INDEX 

[References  are  to  sections.] 

SCHOOLHOUSE  —  Continued. 

increased  expenditures  for,  should  be  authorized  by  vote  of  dis- 
trict, 59. 

burning  of,  as  affecting  teacher's  compensation,  65. 

may  be  exempt  from  taxation,  129. 
SCHOOL  PROPERTY, 

may  not  be  used  for  other  purposes  except  by  statute,  21. 

duty  to  keep,  in  safe  condition,  33. 

right  to,  34. 

control  of,  34. 

not  to  be  used  for  certain  purposes,  34. 

offenses  against,  38. 

loitering  on,  38. 
SCHOOL  WARRANTS, 

power  to  draw,  cannot  be  delegated,  IIL 

drawn  by  de  facto  officers  cannot  be  denied  payment,  48. 

may  not  be  issued  payable  in  future,  54,  59,  IIL 

issued  to  unlicensed  teacher  is  void,  63. 

statute  prescribing  purposes  to  be  shown  on  fact,  111. 

statute  prescribing  form  is  mandatory.  111. 

indorsee  of.  111. 

are  not  subject  to  law  merchant.  111. 

defenses  against.  111. 

do  not  bear  interest  unless  statute  so  provides,  111. 

district  not  liable  on,  illegally  issued.  111. 

want  of  authority  as  a  defense.  111. 

are  -prima  Jacie  valid.  111. 

no  privity  of  contract  between  holders  of,  and  city  where  district 
is  separate.  111. 

issuance  of,  does  not  merge  oral  contract  into  written.  111. 

alone  create  no  legal  hability.  111. 

need  not  bear  corporate  seal,  111. 

directors  not  liable  where,  on  face  show  obligation  of  district,  111. 

in  violation  of  statute  is  void.  111. 

receivable  in  payment  of  school  tax,  128. 
SEAL, 

appointment  of  committee  not  under,  no  ground  to  avoid  contract 
with  them,  56. 
SECRET  SOCIETIES, 

regulation  of,  92. 

punishment  for  joining,  92. 

growth  of,  92. 

416 


INDEX 

[References  are  to  sections.] 

SECRET   SOCIETIES  —  Continued. 

objections  to,  92. 

statutes  against,  not  necessarily  unconstitutional,  92. 
SECTARIAN  PURPOSES, 

reading  of  Bible  and  singing  as  promoting,  68. 
"SELECT," 

meaning  of  term,  35. 

distinguished  from  "provide,"  35. 
SEPARATE  SCHOOLS, 

schoolhouses  of,  may  be  exchanged,  28. 

constitutionality  in  establishing,  82. 

must  be  uniform,  82. 

must  have  equal  school  year,  82. 

for  Indians,  82. 

established  for  three  or  four  pupils  is  misuse  of  public  funds,  82. 

can  be  estabhshed  only  by  authority  of  statute,  82. 

power  to  establish,  cannot  be  controlled  by  courts,  82. 

colored  children  cannot  be  entirely  excluded  from,  82. 

colored  children  compelled  to  travel  further  to  reach,  82. 

colored  children  compelled  to  cross  railroad  track  to  reach,  82. 

access  to,  beset  with  dangers,  82. 
SEX, 

constitutional  provisions  regarding,  3. 
SINGING, 

of  religious  songs,  68. 
SITE.    See  also  Location. 

authority  to  select,  21,  29. 

authority  to  purchase,  may  include  broker's  fee,  28. 

selection  of,  sometimes  may  not  be  delegated,  29. 

may  be  changed  as  often  as  desired,  29. 

record  of  action  in  choosing,  29. 

land  acquired  for  purposes  other  than,  29. 

selection  of,  defeated,  may  be  voted  at  new  meeting,  29. 

public  park  may  not  be,  29. 

public  square  may  be,  29. 

injunction  against  changing,  must  show  special  damage  threat- 
ened, 29. 

pointed  out  by  committee  may  be  relied  upon  by  contractor  of 
building,  30. 

duty  to  select  may  not  be  delegated,  54. 
SLANDER.    See  Privileged  Communications. 
SPECIAL  ASSESSMENT.    See  Taxation. 

417 


INDEX 

[References  are  to  sections.] 

STATE  SUPERINTENDENT, 

may  have  control  of  schools,  officials  and  funds,  41. 
usually  has  power  of  removal,  41. 
camiot  reverse  acts  of  discretion,  41. 
scope  of  powers  of,  on  appeal,  41. 

appeal  to,  provided  by  statute  is  necessary  proceeding,  41. 
injunction  not  granted  when  appeal  is  provided,  41. 
election  of,  manner  of  voting  and  electing,  41. 
trustee  may  not  vote  for  himself  for,  41. 

statutory  appropriations  to,  do  not  give  personal  right  to  funds,  41. 
suit  by,  through  private  attorney,  41. 
judicially  decides,  42. 
appeal  to,  by  discharged  teacher,  GO- 
STATUTE, 

city  charter  may  prevail  over  a  general,  43. 
rules  of  school  authorities  must  not  be  inconsistent  with,  43. 
STATUTE  OF  LIMITATIONS, 
as  a  defense,  26. 

acts  amounting  to  promise  to  pay,  26. 
STATUTES, 
all,  are  to  be  construed  together,  15. 
are  to  receive  liberal  construction,  131. 
creating  presumption  as  to  de  facto  districts,  16. 
authority  of,  to  alter  districts,  17. 
establishing  new  school  system,  20. 
powers  of  school  districts  derived  from,  21. 
sjmopses  of  principal,  of  each  State,  131. 

Alabama,  132. 

Arizona,  133. 

Arkansas,  134. 

California,  135. 

Colorado,  136. 

Connecticut,  137. 

Delaware,  138. 

Florida,  139. 

Georgia,  140. 

Idaho,  141. 

lUinois,  142. 

Indiana,  143. 

Iowa,  144. 

Kansas,  145. 

Kentucky,  146. 

418 


INDEX 

[References  are  to  sections.] 

STATUTES  —  Continued. 

Louisiana,  147. 

Maine,  148. 

Maryland,  149. 

Massachusetts,  150. 

Michigan,  151. 

Minnesota,  152. 

Mississippi,  J53. 

Missouri,  154. 

Montana,  155. 

Nebraska,  156. 

Nevada,  157. 

New  Hampshire,  158. 

New  Jersey,  159. 

New  Mexico,  160. 

New  York,  161. 

North  CaroUna,  162. 

North  Dakota,  163. 

Ohio,  164. 

Oklahoma,  165. 

Oregon,  166. 

Pennsylvania,  167. 

Rhode  Island,  168. 

South  Carolina,  169. 

South  Dakota,  170. 

Tennessee,  171. 

Texas,  172. 

Utah,  173. 

Vermont,  174, 

Virginia,  175. 

Washington,  176. 

West  Virginia,  177. 

Wisconsin,  178. 

Wyoming,  179. 
STEP-FATHER, 

may  be  compelled  to  educate  step-child,  7. 
STUDIES, 
teacher's  report  of  branches  of,  62. 
pupil  is  entitled  to  admission  if  he  passes  all  but  one,  84. 
prescribed  by  legislature,  98. 

prescribed  by  directors  inconsistent  with  State  Board  of  Educa- 
tion, 98. 

419 


INDEX 

[References  are  to  sections.] 

STUDIES  —  Continued. 

courts  may  not  interfere  with  course  of  study,  98. 

prescribed  or  prohibited  by  parent,  106. 

right  of  parent  to  direct  child's,  106. 
SUPERINTENDENT.     See  State  Superintendent. 


TARDINESS, 

punishment  for,  90. 
TAX, 

power  to  levy,  117. 

adverse  vote  to  levy,  taken  at  district  meeting  may  be  recon- 
sidered at  special  meeting,  24,  118. 

vote  to  lay,  may  be  reconsidered  before  assessment,  24. 

injunction  will  not  lie  to  restrain  collection  of,  26. 

remedy  against  collection  of  illegal,  26. 

to  pay  for  schoolhouse  illegally  erected  may  be  resisted,  56. 

uniform,  to  pay  for  school  building  exclusively  for  whites,  82. 

may  be  laid  for  higher  branches  of  study  than  described  in  statute, 
117. 

if  any  doubt  of  right  to,  cannot  be  levied,  117. 

meeting  to  authorize  levy  of,  118. 

burden  of  proof  of  illegal,  is  on  taxpayer,  118. 

when  certified,  levied  and  partly  paid,  vote  may  not  be  rescinded, 
118. 

voted  at  irregular  meeting,  118. 

purposes  of,  119,  124. 

purposes  of,  must  be  shown  in  vote,  124. 

valid  levy  may  be  made  after  void  one,  119. 

classification  of  purposes  of,  119. 

on  land  in  possession  is  valid,  even  if  title  is  defective,  119. 

voted  for  schoolhouse  before  site  is  procured,  119. 

collection  of,  not  to  be  enjoined  because  it  may  be  improperly 
used,  119. 

vote  to  levy,  must  specify  amount,  120. 

manner  of  levying,  121. 

against  corporation,  121. 

may  be  levied  annually,  121. 

in  levying,  statute  must  be  strictly  followed,  121. 

apportionment  of,  122. 

apportionment  of,  power  of,  is  in  legislature,  122. 

420 


INDEX 

[References  are  to  sections.] 

TAX  —  Continued. 
benefits  of,  122. 

may  be  laid  upon  what  property,  123. 
on  land  must  be  within  district,  123. 
how  assessed  on  personal  property,  123. 
on  stock  of  national  bank,  123. 
on  municipal  property,  123. 
certificate  of  levy,  124. 
certificate  of  levy,  signing  of,  124. 
certificate  of  levj^,  defective,  124. 
certificate  of  levy,  must  be  correct,  124. 
certificate  of  levy,  second  may  be  made,  125. 
assessing  of,  125. 
method  of  valuation,  125. 
time  of  assessing,  125. 
assessed  for  future  expenses,  125. 
discretion  in  assessing  portion  of,  125. 
debt  of,  is  fixed  by  assessment,  125. 
districts  changed  after,  assessment,  125. 
for  schools  is  not  a  special  assessment,  125. 
assessment  of,  may  be  made  after  period  prescribed  by  statute, 

125. 
omission  to,  particular  property,  125. 
assessed  on  part  of  school  district,  125. 
irregularities  in,  legalized  by  legislature,  125. 
constitutionality  of,  126. 
what,  law  should  contain,  126. 
power  to,  granted  to  municipal  authorities,  126. 
levied  for  higher  grades  of  study,  126. 
le\'ied  under  unconstitutional  act,  126. 
illegal  levy  of,  127. 
levied  to  pay  excess  warrants,  127. 
on  property  outside  of  district  is  void,  127. 
levied  by  one  not  officer  de  facto,  127. 
levied  before  building  authorized,  127. 
assessment  and  collection  of,  beyond  authority  gives  no  right  of 

action  against  district,  127. 
illegal  vote  to,  carried  into  effect  creates  personal  liability,  127, 
property  or  money  taken  for  illegal,  may  be  recovered,  127. 
collection  of,  128. 

collection  of,  same  as  executions,  130. 
collector  of,  must  be  oflBcer  de  jure  to  maintain  action,  128. 

421 


INDEX 

[References  are  to  sections.] 

TAX  —  Continued. 

collector  of,  paying  over  to  successor,  128. 

collector  of,  incurring  expenses  in  office,  128. 

collector  of,  must  not  sell  excess  of  distrained  property,  128. 

collector  of,  levy  by,  130. 

wrongfully  collected  to  be  returned,  128. 

irregularities  in  levy  of,  128. 

time  of  payment  of,  128. 

may  be  paid  in  school  warrants,  128. 

delinquent,  130. 

delinquent,  execution  and  sale  for,  130. 

how  collected,  130. 

to  whom  paid,  130. 

vahdity  of,  130. 

collector  of,  acquires  special  property  in  thing  levied  upon,  130. 

collector  may  become  trespasser,  130. 
TAXATION, 

of  white  and  colored  people  must  be  uniform,  82. 

borrowing  not  to  be  substituted  for,  108. 

repeal  of  laws  on,  117. 

benefits  of,  122. 

exemption  of  property  from,  129. 

exemption  of  property,  use  not  ownership  governs,  129. 

special  assessment  is  not,  129. 
TAX  WARRANT, 

assessors  liable  for  issuing  illegal,  125. 

if  illegal  may  be  revoked,  125. 

lost,  new  one  may  issue,  128. 

lost,  proving  contents  of,  128. 

signed  by  two  trustees  prima  facie  valid,  128. 
TEACHER.    See  also  Compensation,  Injunction. 

contract  with,  required  in  writing,  part  performance  as  ratifi- 
cation, 54. 

unauthorized  contract  with,  not  ratified  by  part  performance,  54. 

definition  of,  62. 

duties  of,  62. 

duties  are  founded  on  contract,  62. 

not  liable  to  parent  for  refusal  to  instruct,  62. 

rule  that,  shall  reside  in  city,  62. 

reports  of,  62. 

reports  of,  payment  of  salary  dependent  on,  62. 

reports  of,  no  power  to  waive,  62. 

422 


INDEX 

[References  are  to  sections.] 
TEACHER  —  Continued. 
certificate,  is  accepted  under  conditions  of  statutes,  63. 
certificate,  bias  in  revocation  of,  63. 
certificate,  endorsement  of,  63. 

certificate,  examination  of  applicant  for,  may  be  compelled,  63. 
certificate,  issuance  of,  may  be  compelled,  63. 
certificates,  63. 

certificates  and  licenses  are  controvertible  terms,  63. 
certificates,  form  and  nature  of,  63. 
certificates,  expiration  of,  63. 
certificates,  approval  of,  63. 
certificates,  refusal  to  grant,  42,  63. 
certificates,  refusal  to  examine  for,  63. 
certificates,  burden  of  showing  want  of,  63. 
certificates,  is  evidence  of  qualification,  63. 
certificates,  wrongful  withholding  or  revocation,  63. 
certificates,  notice  may  be  necessary  to  revocation  of,  63. 
must  show  Hcense  to  teach  in  action  brought  for  wages,  63. 
authority  of  unlicensed,  not  to  be  questioned  by  parents  of 

pupils,  63, 
contract  of  unlicensed,  63.  ^ 

dismissed  for  incompetency,  63. 
average  ability  only  is  required,  63. 
compensation  of  unlicensed,  63. 
employment  of  unlicensed,  may  be  necessary,  63. 
recognition  of,  and  employment  of,  may  be  compelled,  63. 
contract  of  employment,  64. 
contract  to  be  in  writing,  64. 

contract  may  be  enforced  against  successors  in  school  board,  64. 
contract  by  de  facto  officer,  64. 
contract,  rules  and  regulations  may  be  part  of,  64. 
contract  to  teach  primary  grade,  not  to  be  required  to  teach 

higher  grades,  64. 
contract  is  for  personal  services,  not  for  substitute,  64. 
contract  for  less  than  minimum-wage  law  is  crime,  64. 
contract  invalid,  may  be  ratified  by  conduct,  64. 
contract  specifying  term   of  service,   longer  period  cannot  be 

claimed,  64. 
contract  beginntog  at  specific  date  runs  through  year  if  not 

limited,  64. 
contract,  form  of,  to  be  prepared  by  directors,  64. 
contract  need  not  be  signed  by  directors  simultaneously,  64. 

423 


INDEX 

[References  are  to  sections.] 

TEACHER  —  Continued. 

contract  valid  upon  face  cannot  be  repudiated,  64. 

contract  signed  by,  subsequent  to  meeting,  64. 

contract  separately  agreed  to  may  be  repudiated,  64, 

contract  made  orally  when  statute  requires  writing,  no  recovery 

on  quantum  meruit,  64. 
contract,  statute  requiring  written  is  mandatory,  64. 
contract,  statute  requiring  duplicate  is  directory,  64. 
contract,  oral,  after  term  of  written,  is  mienforceable,  64. 
contract,  oral,  in  absence  of  statute  requiring  written,  recovery 

may  be  on  quantum  meruit,  64. 
contract,  in  absence  of,  services  accepted  are  to  be  paid  for  on 

quantum  meruit,  64. 
contract,  act  of  God  rendering  performance  impossible  excuses 

from  liability,  64. 
contract,  contagious  disease  as  affecting,  64. 
contract  made  by  two  members  of  committee,  64. 
contract  extending  beyond  term  of  office  of  directors,  64. 
contract  extending  beyond  one  school  year,  64. 
contract  to  teach  given  period,  payable  monthly,  is  entire  con- 
tract, 64. 
contract,  no  recovery  when  entire  contract  is  broken,  64. 
contract,  fixing  living  or  boarding  place  in,  64. 
contract  implies  that,  guarantees  learning  and  capacity  to  impart 

it,  64. 
contract  made  by  trustees  with  a  member  of  board,  64. 
contract  made  by  moderator  with  her  husband,  64. 
contract  made  by  director  with  his  minor  daughter,  64. 
contract  is  abandoned  by  acceptance  of  unauthorized  dismissal, 

64. 
contract  giving  up  statutory  advantage  is  void,  64. 
contract,  notice  of  dismissal  given  before  services  are  begun,  64. 
contract,  marriage  is  not  breach  of,  64. 
contract,  measure  of  damages  in  breach  of,  64. 
compensation  of,  65. 
appointed  by  de  facto  officer  or  agent  may  recover  compensation, 

65. 
assigning  scholars  as,  65. 
salary,  refusal  of  treasurer  to  pay,  65. 
salary,  neglect  of  directors  to  save  money  for,  65. 
salary,  placing   of   money   therefor   with   custodian   does   not 

amount  to  j3ayment,  65. 

424 


INDEX 

[References  are  to  sections.] 

TEACHER  —  Continued. 

salary,  not  attachable  while  in  possession  of  municipal  officers,  65. 

powers  of,  66. 

suspension  and  expulsion  by,  66. 

discharge  of,  for  expelling  pupil,  66. 

has  no  authority  to  contract  for  janitor  service,  66. 

prohibiting  the  wearing  of  religious  garb  by,  67. 

discharge,  removal  and  suspension  of,  69. 

assigning  of,  to  lower  grade  is  a  removal,  69. 

right  to  discharge  at  pleasure,  69. 

notice  and  hearing  of  discharged,  may  be  necessary,  69. 

vote  of  majority  is  necessary  to  dismissal  of,  69. 

no  action  for  salary  of,  after  dismissal  by  authority  of  statute,  69. 

who  has  right  to  dismiss,  69. 

action  for  salary  after  illegal  dismissal  of,  69. 

dismissed  for  cause  and  afterward  reinstated  no  action  for  salary 
for  interim,  69. 

right  of  dismissed,  to  salary  is  terminated  by  the  notice,  69. 

unlawful  discharge  of,  right  of  action  defeated  by  new  agreement, 
69. 

discharge  of,  for  statutory  cause,  69. 

wrongfully  dismissed,  not  obliged  to  accept  different  employ- 
ment, 69. 

measure  of  damages  of  discharged,  69. 

burden  of  proof  in  discharge  of,  69. 

necessary  appeal  to  superintendent  by  discharged,  69. 

is  not  public  officer,  69. 

mandamus  will  not  lie  in  case  of  unlawful  discharge  of,  69. 

injunction  will  not  be  granted  in  case  of  unlawful  discharge  of, 
69. 

discharge  of,  is  reviewable  only  in  statutory  tribunal,  69. 

resignation  of,  69. 

cannot  be  dismissed  for  incompetency  before  services  rendered, 
69. 

contract  of,  for  definite  period,  under  statute  may  be  dismissed 
at  pleasure,  69. 

dismissed  when  contract  is  for  definite  period,  69. 

refusal  of,  to  consent  to  unspecified  vacation,  69. 

assault  and  battery  on,  69. 

forcibly  dispossessed  of  schoolhouse,  69. 

marriage  of  female,  no  cause  for  removal,  69. 

maternity  of,  absence  for,  69. 

425 


INDEX 

[References  are  to  sections.] 

TEACHER  —  Continued. 

refusal  of,  to  be  vaccinated,  69. 

refusal  of,  to  admit  dismissed  pupil,  69. 

right  of,  to  chastise  pupil,  70. 

assault  by  parent  on,  for  chastising  pupil,  70. 

charged  with  assault  and  battery  on  pupil,  70. 

injury  by,  inflicted  on  pupil,  70. 

right  of,  to  expel  pupil,  71,  78. 

right  of,  to  expel  pupil,  in  emergency,  78. 

stands  in  loco  'parentis,  71,  78. 

use  of  pupils  as,  72. 

parent  insulting  and  abusing,  to  interruption  of  school,  78. 
TEXT-BOOKS, 

teacher's  report  of,  used,  62. 

exclusion  of  pupil  for  failure  to  comply  with  illegal  order  per- 
taining to,  78. 

adoptions  of,  99. 

of  dangerous  and  immoral  tendency  selected  by  committee  not 
controllable  by  courts,  98. 

purchased  by  State  and  sold  to  pupils,  99. 

control  of  sale  of,  99. 

of  designated  publisher,  99. 

uniform  series  of,  99. 

authorizing  change  of,  99. 

notice  of  change  of,  99. 

calling  teachers  together  for  advice  on,  99. 

right  of  trustees  to  prescribe,  99. 

uniformity  of,  prescribed  by  legislature,  100. 

uniformity  of,  what  is,  100. 

commissions,  101. 

object  of  text-book  commissions,  101. 

reference  books  used  in  connection  with,  101. 

bids  for  supplying,  102. 

power  of  legislature  to  contract  for,  102. 

conventions  called  to  receive  bids  for,  102. 

awarding  of  contract  for,  without  advertising,  102. 

delivery  of  contract  for,  by  bidder,  102. 

free,  103. 

committee  may  purchase  on  personal  credit,  103. 

publishers'  contracts  for,  104. 

publishers  of,  may  be  licensed,  104. 

price  on,  may  be  fixed  by  legislature,  104. 

426 


INDEX 

[References  are  to  sections.] 

TEXT-BOOK  COMMISSIONS.    See  also  Text-books. 

appointment  of,  not  a  supervision  of  instruction,  101. 

will  of,  not  to  be  thwarted  by  local  adoptions,  101. 
TORT, 

actions  for,  against  districts,  27. 

district  not  liable  for  injury  by  excavation,  27. 

district  not  liable  for  certain  acts  of  negligence,  27. 

district  not  liable  for  conversion  by  directors,  27. 

district  not  liable  for  unsafe  conveyance,  27. 

district  not  liable  for  burning  of  pupil,  27. 

district  not  liable  for  injury  by  falling  column,  27. 

district  not  liable  for  defective  premises,  27. 

agent  of  district  may  be  liable  for,  27. 

liability  for,  may  be  created  by  statute,  27. 

by  wrongful  entry  on  records,  43. 
TRANSPORTATION, 

district  not  liable  for  providing  imsafe,  27. 

of  pupils,  83. 

duty  of  furnishing,  83. 

remedy  for  failure  to  provide,  83. 

compulsory  attendance  law  as  affected  by  failure  to"  provide, 
83. 

funds  to  establish,  83. 

requiring  pupils  to  meet  conveyance,  83. 

right  of,  is  a  public  right,  83. 

school  district  not  hable  for  injuries  in  negligently  provided,  83. 

of  pupils  on  railways  at  half  fare,  83. 
TREASURER, 

of  school  board,  duties  of,  60. 

of  school  board,  bond  of,  60. 

of  school  board,  generally  absolutely  responsible,  60,  110. 

of  school  board,  may  be  liable  for  money  stolen  from  him,  60. 

of  school  board,  directors  may  not  release,  from  debt  if  no  con- 
sideration, 60. 

of  school  board,  may  be  liable  for  funds  deposited  in  bank  which 
fails,  60,  110. 

of  school  board,  is  liable  for  own  negligence,  60. 

of  district  may  pay  himself  legal  claim  rejected  by  district,  64. 

refusing  to  pay  teacher's  salary  becomes  liable,  65. 

is  proper  custodian  of  funds,  110,  113. 

may  bring  suit  against  collector  for  withheld  funds,  110. 

shall  "hold"  money,  meaning  of  term,  110. 

427 


INDEX 

[References  are  to  sections.] 

TREATY, 

regulating  schools  by,  3. 
TRESPASS, 

exclusion  of  those  who,  34. 
TRUANCY.    See  also  Attendance  Officers. 

not  an  offense  at  common  law,  96. 

expulsion  for,  96. 
TUITION, 

cannot  recover  for,  in  unauthorized  school,  26. 
TUITION  FEES, 

may  not  be  inconsistent  with  public  schools,  5. 

may  not  be  exacted  for  manual  training,  76. 

may  not  be  exacted  from  resident  foster  child,  76. 

may  be  exacted  from  those  over  age,  76. 

may  be  exacted  from  non-residents,  76. 

may  be  exacted  from  temporary  residents,  76. 

U 
ULTRA    VIRES, 

acts,  59. 
UNIFORMITY, 

in  school  system  as  open  to  all,  3. 

what  is,  in  school  system,  3. 

what  is,  in  text-books,    100. 
USAGE, 

powers  cannot  be  enlarged  nor  diminished  by,  23. 

does  not  sanction  abuse  of  powers,  23. 
USE, 

of  school  property,  34. 

of  goods  illegally  purchased  does  not  ratify,  58. 

of  goods  for  long  time  may  ratify  illegal  purchase,  58. 
USURPER.    See  also  Officer. 

officer  elected  under  unconstitutional  statute  is,  48. 

acts  of,  are  void,  48. 

by  acquiescen  ce  may  become  officer  de  facto,  48. 

definition  of,  48. 

right  of,  to  be  settled  by  quo  warranto,  49. 

acts  of,  may  be  enjoined,  49. 

V 

VACANCIES, 

conflict  of  statute  and  city  charter  as  to  filling,  43. 

428 


INDEX 

[References  are  to  sections.] 

VACCINATION, 

effect  of  statute  requiring,  14, 

of  pupil  may  rest  in  option  of  parent,  14. 

laws  as  conflicting  with  compulsory  attendance  laws,  14,  79. 

certificate  of,  as  condition  of  attendance,  79. 

board  of  health  regulations  concerning,  79. 

laws  concerning,  as  exercise  of  police  power,  79. 

laws  concerning,  not  repealed  by  compulsory  education  acts,  79. 

unfit  subject  for,  79. 

unfit  subject  for,  may  be  excluded  during  epidemic,  79. 

rule  requiring,  is  not  unreasonable  or  unconstitutional,  79. 

in  absence  of  statute  requiring,  rule  is  invalid  unless  epidemic  is 
pending,  79. 

avoiding  compulsory  attendance  law  by  refusing,  79. 

what  officers  have  duty  of  excluding  pupils,  79. 

rules,  when  valid,  79. 
VOTE, 

to  organize  school  district,  17. 

of  district  may  be  reconsidered  at  special  meeting,  24. 

two-thirds,  cannot  be  reconsidered  by  bare  majority,  24. 

of  town  may  be  disregarded  by  school  directors,  24. 

electing  superintendent  may  be  reconsidered,  53. 

formal,  is  not  necessary  with  school  directors  in  subordinate 
matters,  53. 

what  is  meant  by  majority,  116. 
VOTING, 

method  of,  24. 

W 

WARNING.    See  District  Meetings. 

WARRANT.    See  School  Warrant  ;    Tax  Warrant. 


429 


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